[Federal Register Volume 85, Number 244 (Friday, December 18, 2020)]
[Rules and Regulations]
[Pages 82750-82795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27506]
[[Page 82749]]
Vol. 85
Friday,
No. 244
December 18, 2020
Part IV
Department of Justice
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Executive Office for Immigration Review
8 CFR Parts 1003, 1103, 1208, et al.
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Executive Office for Immigration Review; Fee Review; Final Rule
Federal Register / Vol. 85 , No. 244 / Friday, December 18, 2020 /
Rules and Regulations
[[Page 82750]]
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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.
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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).
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\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.
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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.
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\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'').
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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'').
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\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).
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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.
[[Page 82751]]
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 ``Sec. 1103.7(b)''
in Sec. 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 Sec. 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 Sec. 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.
[[Page 82752]]
c. Part 1208--Procedures for Asylum and Withholding of Removal
The NPRM proposed to amend 8 CFR 1208.7 to change the citation
``Sec. 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 Sec. 1216.4, the NPRM proposed to change the
citation ``Sec. 103.7(b)'' to ``Sec. 106.2'' in paragraph (a)(1). It
also proposed to change the citation ``Sec. 103.7(b)'' to ``Sec.
106.2'' in paragraph (b). In Sec. 1216.6, the NPRM proposed to change
the citation ``Sec. 103.7(b)(1)'' to ``Sec. 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 ``Sec. 103.7(b)(1)'' to
``Sec. 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 Sec. 1240.11, the NPRM
proposed to change the citation ``Sec. 103.7(b)(1) of 8 CFR chapter
I'' to ``Sec. 1103.7(b)(1) of this chapter'' in paragraph (f). In
Sec. 1240.20, the NPRM proposed to change the citation ``Sec.
103.7(b) of 8 CFR chapter I'' to ``Sec. 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 Sec. 1244.6, the NPRM proposed to change the
citation ``Sec. 103.7 of this chapter'' to ``8 CFR 106.2''. Further,
in Sec. 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 Sec. 1245.7, the NPRM proposed to change the citation ``Sec.
103.7 of this chapter'' to ``8 CFR 103.7 and 8 CFR 103.17'' in
paragraph (a).
In Sec. 1245.10, the NPRM proposed to change the citation ``Sec.
103.7(b)(1) of this chapter'' to ``8 CFR 106.2'' in paragraph (c).
In Sec. 1245.13, the NPRM proposed to change the citation ``Sec.
103.7(b)(1)'' to ``Sec. 106.2'' in paragraphs (e)(1), (g), (j)(1), and
(k)(1), and it proposed to change the citation ``Sec. 103.7(b)(1)'' to
``Sec. 103.7(a)(2)'' in paragraph (e)(2).
In Sec. 1245.15, the NPRM proposed to change the citation ``Sec.
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 ``Sec.
103.7(c)'' to ``Sec. 106.3'' in paragraph (c)(2)(iv)(B). Further, in
1245.15, the NPRM proposed to change the citation ``Sec. 103.7(b)(1)''
to ``Sec. 106.2'' in paragraph (h)(1), (n)(1), and (t)(1), and it
proposed to change the citation ``Sec. 103.7(b)(1)'' to ``Sec.
103.2(a)(2)'' in paragraph (h)(2).
In Sec. 1245.20, the NPRM proposed to change the citation ``Sec.
103.7(b)(1)'' to ``Sec. 106.2'' in paragraphs (d)(1), (f), and (g).
In Sec. 1245.21, the NPRM proposed to change the citation ``Sec.
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.
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\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.
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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
[[Page 82753]]
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.
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\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.
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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.''
[[Page 82754]]
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
[[Page 82755]]
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
[[Page 82756]]
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.
---------------------------------------------------------------------------
[[Page 82757]]
[GRAPHIC] [TIFF OMITTED] TR18DE20.021
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
[[Page 82758]]
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
[[Page 82759]]
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.
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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\
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\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.
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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\
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\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.
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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
[[Page 82760]]
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).
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\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).
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\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
[[Page 82761]]
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\
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\20\ For further discussion of the availability of fee waivers,
see section II.C.4.
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As explained in the NPRM, the proposed fee for an appeal was
determined following a comprehensive
[[Page 82762]]
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.
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\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.
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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\
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\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.
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[[Page 82763]]
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
[[Page 82764]]
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
[[Page 82765]]
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,
[[Page 82766]]
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 to which they were referring.
Commenters also raised concerns that the Department did not
properly explain how individuals who are subject to the MPP, and are
not actually in the United States, would be required to pay such a fee
as they do not have physical access to the immigration courts.
Commenters stated that in the past, the former Immigration and
Naturalization Service (``INS'') withdrew a proposed rule that would
have required a fee for a Form I-730, Refugee/Asylee Relative Petition,
on the basis that ``[u]nlike some benefits sought by asylees, a
relative petition may be filed at a time when the asylee has recently
arrived in the United States and is most unlikely to be financially
self-sufficient.'' Fees for Processing Certain Asylee/Refugee Related
Applications, 58 FR 12146, 12147 (Mar. 3, 1993). Commenters asserted
that such difficulties would be exacerbated with respect to children,
who would be less likely to have the knowledge and capacity to fill out
a fee waiver request.
Commenters stated that USCIS had, in its 2019 proposed rule
regarding its fees, considered a distinction between affirmative and
defensive asylum applications. For example, commenters noted that USCIS
declined to impose a filing fee for asylum applications by
unaccompanied children whose cases originated in immigration court,
noting that it did not wish to create any delays for children in
removal proceedings; however, USCIS did propose a $50 fee for
unaccompanied minors who filed affirmatively and are not in removal
proceedings. See 84 FR at 62319. Commenters asserted that the
Department could not justify imposing a filing fee for defensive asylum
applications solely by relying on USCIS's decision to charge a filing
fee for affirmative asylum applications. Commenters stated that the
Department did not engage in independent analysis, such as an activity-
based analysis, to justify setting such a fee.
Commenters asserted that it was difficult to assume that the
Department would be acting in good faith in implementing a fee for
asylum applications in light of recent administrative actions that
commenters purport were taken to limit asylum seekers from succeeding
on their claims. Specifically, commenters referenced ``metering,'' the
MPP, Asylum Cooperative Agreements, and DHS's Prompt Asylum Claim
Review and Humanitarian Asylum Claim Review Process, among other
things.
Commenters expressed concern about the impact that imposing such a
fee would have on motions to reopen and appeals based on applications
for asylum. Specifically, commenters expressed concerns that the $50
filing fee would trigger other fees related to their asylum claims.
Commenters stated that existing regulations only charge fees for
motions to reopen if they are based exclusively on an application for
relief that in turn requires a fee. Commenters stated that while
motions to reopen based on an asylum application would not have
previously carried an associated fee, under the NPRM, motions to reopen
based on asylum applications could potentially require movants to pay
the full, proposed filing fee of $145 for motions to reopen before an
immigration judge and $895 for motions to reopen filed before the BIA.
Commenters asserted that such fees would be unaffordable and undermine
an alien's statutory right to a motion to reopen.
Additionally, commenters stated that an asylum seeker might have to
pay up to $975 to file an appeal if his or her application is denied by
the immigration judge. Commenters stated that it would be unreasonable
to expect asylum seekers to pay such fees. Commenters noted the Supreme
Court's statement that that ``there is a public interest in preventing
aliens from being wrongfully removed, particularly to countries where
they are likely to face substantial harm.'' Nken v. Holder, 556 U.S.
418, 436 (2009). Commenters stated that the Department did not
adequately consider the cumulative effect of these fees on asylum
applications. Commenters expressed concern that DHS's proposed rules,
which could increase the amount of time that it would take for asylum
seekers to obtain work authorization, in conjunction with EOIR's
policies to expedite asylum adjudications before the court, could
result in asylum seekers being required to pay the proposed $975 filing
fee to appeal their asylum decision to the BIA before having received
employment authorization that would allow them to do so.
Commenters stated that detained individuals would be particularly
impacted by the NPRM because of their limitations on earning money
while in detention. Commenters recommended that detained individuals be
exempted from paying the $50 asylum filing fee.
[[Page 82767]]
Commenters stated that imposing a fee on asylum seekers would place
an undue burden on nonprofit organizations and faith-based
organizations that serve asylum seekers because in situations where
asylum seekers could not afford the proposed filing fee or have their
fee waiver rejected, such organizations might feel compelled to pay the
fee themselves. Commenters stated that if this becomes common practice,
legal service providers would have fewer resources to expend on their
core missions of providing legal representation, which would ultimately
lead to decreased representation rates. Commenters stated that pro se
applicants, children, LGBTQ individuals (who commenters stated are
often ostracized and isolated by their families), and detained
individuals would be disproportionately impacted by the rule.
Commenters noted that there is no right to appointed counsel in asylum
proceedings.
A commenter asserted that the Department did not properly consider
``extraordinary public comments against charging for asylum.'' For
example, commenters stated, Congress had previously admonished USCIS to
refrain from charging a fee for humanitarian applications, such as
asylum, directed that it should consult with the USCIS Ombudsman's
office before imposing such fees, and required it to brief Congress on
the possible impact that such fees might have. See 165 Cong. Rec.
H11021 (2019).
Commenters stated that the NRPM would not comply with international
law and that the continued availability of statutory withholding of
removal or protection under the CAT regulations for those who are
deemed ineligible for failure to pay the filing fee or be granted a fee
waiver would not be a sufficient alternative. Specifically, commenters
asserted that statutory withholding of removal or protection under the
CAT regulations are lesser forms of relief, as they still result in a
final order of removal that can be executed at a later date, do not
provide a path to lawful permanent residence or citizenship, do not
allow for derivative relief for family members, and do not confer a
form of relief that would permit recipients to petition for family
members to join them in the United States or to travel to visit family
members abroad. Additionally, commenters stated that it is more
difficult to demonstrate eligibility for statutory withholding of
removal or protection under the CAT regulations. Commenters stated that
the NPRM would lead to at least some individuals who could meet the
lower threshold for asylum having to forgo protection because they
could not afford the filing fee, would not receive a fee waiver, and
would not be able to meet the higher threshold of statutory withholding
of removal or protection under the CAT regulations.
Commenters further asserted that the Department did not adequately
explain why it imposed a filing fee for asylum applications but not for
the adjudication of statutory withholding of removal or protection
under the CAT regulations. Commenters opined that to do so would be
irrational and appeared to be punitive. Commenters stated that, in
particular, the Department did not adequately justify why it should
charge a fee for one application for relief where the immigration judge
would be required to consider identical evidence regardless of whether
the alien's application is for asylum or for statutory withholding of
removal. Commenters also noted that when an individual applies for
asylum, statutory withholding of removal, and protection under the CAT
regulations, the immigration judge considers the claims simultaneously.
Commenters further asserted that, while immigration judges would not
have to adjudicate filing-deadline issues in statutory withholding of
removal claims, asylum and statutory withholding of removal require
consideration of otherwise identical evidence of persecution on account
of a protected ground. Other commenters stated that very few applicants
would apply statutory withholding of removal or protection under the
CAT regulations to the exclusion of asylum.
Some commenters suggested that EOIR create its own form to be used
for asylum applications, statutory withholding of removal applications,
and applications for protection under the CAT regulations, and not use
DHS's form. Commenters also recommended that, if the Department does
not rescind the NPRM, it should clarify that an asylum seeker need only
pay the fee one time, and not upon filing a new Form I-589 that might
correct erroneous information or more fully explain the basis for their
claim.
Response: The Department notes that USCIS is a component of DHS,
which is a separate agency from the Department, 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 85 FR at 11866; 84 FR at 62280.
Because DHS determines the fee for DHS applications, including
those that are also adjudicated by the Department, and because Form I-
589 is a DHS application, most of the comments regarding DHS's $50 fee
for an asylum application are beyond the scope of this rulemaking. The
Department's NPRM did not purport to propose changes to the well-
established regulatory provisions distinguishing between fees for DHS
forms and fees for EOIR forms, and fees for DHS forms adjudicated by
EOIR, including the Form I-589, continue to be set by DHS.\31\ See 8
CFR 1103.7(b)(4)(ii); see also Exec. Office for Immigration Rev.;
Definitions; Fees; Powers and Authority of DHS Officers and Employees
in Removal Proceedings, 69 FR 44903, 44904 (July 28, 2004) (stating
that provisions related to charging the same fees as DHS for DHS-
managed forms ``reflect current practice and reduce that practice to
regulatory form.'').
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\31\ The Department notes that DHS proposed a fee for the Form
I-589 asylum application for such applications filed with DHS. See
84 FR at 62318. DHS noted that whether such fee would apply to
asylum applications filed with the Department would be ``subject to
the laws and regulations governing the fees charged in EOIR
immigration proceedings.'' Id. As indicated in the NPRM, the
regulation governing fees in EOIR proceedings for application forms
published by DHS, 8 CFR 1103.7(b)(4)(ii), relies on the fees
established by DHS for those applications. Consequently, because the
Form I-589 is a DHS form, the DHS regulation setting the fee for
that form determines the fee charged for it in EOIR immigration
proceedings, and neither the NPRM nor the final rule purports to
change that structure.
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DHS collects the fees for all forms submitted in EOIR proceedings,
see 8 CFR 1003.24(a) (``All fees for the filing of motions and
applications in connection with proceedings before the immigration
judges are paid to the Department of Homeland Security.''), and the
Department believes that creating a new system that would require
different fees for the Form I-589 application depending on the agency
that will adjudicate the application would create unnecessary confusion
for parties.\32\ Further, the bases highlighted
[[Page 82768]]
by DHS as the reason to impose a fee for Form I-589 applications,
including increased volume of applications that represent a significant
increase in their adjudicatory caseload, apply similarly to EOIR's
adjudications. See 84 FR at 62318; Exec. Office for Immigration Rev.
Adjudication Statistics: Total Asylum Applications, Exec. Office for
Immigration Rev., July 14, 2020, available at https://www.justice.gov/eoir/page/file/1106366/download (showing a significant increase in
asylum applications filed with EOIR in recent fiscal years, from a low
of 32,888 in Fiscal Year 2010 to a record high of 211,794 in Fiscal
Year 2019). Moreover, section 208(d)(3) of the Act (8 U.S.C.
1158(d)(3)) authorizes the imposition of a fee on applications for
asylum. In addition, because DHS sets the fee for the Form I-589, as a
DHS form, DHS's regulations would control whether or not the fee
applies if an alien submits a new or updated Form I-589 for some
reason.
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\32\ The Department acknowledges that the Form I-881 has had a
separate fee depending on where the form is filed for over 20 years.
See Suspension of Deportation and Special Rule Cancellation of
Removal for Certain Nationals of Guatemala, El Salvador, and Former
Soviet Bloc Countries, 64 FR 27856, 27867-68 (May 21, 1999)
(establishing a fee of up to $430 if the application was filed with
the INS or $100 if filed before EOIR). Current DHS regulations set
the fee differently for a Form I-881 filed by an individual with DHS
than for one filed with EOIR; if DHS refers the Form I-881, there is
no additional fee. 8 CFR 106.2(a)(41) (replacing 8 CFR
103.7(b)(1)(i)(QQ) if the injunctions against the DHS fee rule are
lifted). Given both the anomalous nature of the Form I-881 as the
only application, out of several, jointly adjudicated by the
Department and DHS with separate fees and the declining frequency
with which it is filed due to the declining pool of eligible
applicants--each of whom must have taken some relevant action in the
United States in either 1990 or 1991, see 8 CFR 1240.61(a)--the
Department does not believe that a system of two separate fees for
the Form I-589 could similarly be accomplished without increased
confusion. Moreover, the separate fee structure for the Form I-881
is contained within regulations pertaining to DHS, not EOIR, and DHS
has not chosen to alter that structure.
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For the same reasons, the Department declines to implement
commenters' recommendations for EOIR to create its own form for asylum,
statutory withholding of removal, and protection under the CAT
regulations.\33\ DHS's and EOIR's adjudications of such claims are so
intertwined that the current one-form system is the most efficient
procedure, and the joint form is also easier for applicants as it
reduces the number of forms that an applicant would have to complete
and submit for the same asylum claim.\34\ The same asylum claim may be
considered and adjudicated before both USCIS and EOIR. See, e.g., 8 CFR
208.14(c)(1) (directing asylum officers to refer applications to EOIR
if the asylum officer does not grant the affirmative application of an
inadmissible or deportable alien). With respect to unaccompanied alien
children (``UACs''), following the TVPRA, USCIS asylum officers have
original jurisdiction over an asylum application submitted by
individuals who are otherwise in removal proceedings before EOIR. See
INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C) (``An asylum officer . . .
shall have initial jurisdiction over any asylum application filed by an
unaccompanied alien child . . . .''). If the asylum officer does not
grant the UAC's asylum application, the UAC may raise the same claim
again during removal proceedings before EOIR. See INA 208(b)(3)(C), 8
U.S.C. 1158(b)(3)(C) (establishing ``initial jurisdiction'' with USCIS
(emphasis added)); see also 8 CFR 208.14.
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\33\ In addition, the Department notes that even if the
Department creates a DOJ version of the Form I-589, such an
application could have a fee imposed in the same manner as DHS has
proposed. See, e.g., 8 CFR 1103.7(b)(4)(i) (setting fees for DOJ-
controlled forms for applications for relief).
\34\ The Department notes that there are multiple forms
adjudicated by both it and DHS, in addition to the Form I-589--e.g.,
Form I-485, Form I-601, Form I-751, Form I-821, and Form I-881. The
current one-form system for all of these applications has served
both agencies well, and the Department sees no reason to create a
carve-out solely for the Form I-589. Moreover, creating separate
forms for some applications adjudicated by both agencies but not for
all such forms would increase the likelihood of confusion by aliens
regarding the appropriate form to file.
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The Department notes that the filing fees associated with DHS-
issued applications are set by DHS and will continue to be set by DHS,
as neither the NPRM nor this final rule purports to change that
longstanding practice. Thus, the Department disagrees with comments
stating that the NPRM misstated that the rule would not add any new
fees. See 85 FR at 11866. Although the NPRM did not reference the $50
asylum fee in charts illustrating changes to EOIR-controlled fees--or
any other proposed fee increases by DHS for DHS-issued forms, e.g.,
Form I-485, Form I-601, Form I-751, Form I-821, or Form I-881, that are
adjudicated by both DHS and the Department--the Department explicitly
discussed DHS's proposed rule to implement a $50 fee for asylum
applications on the Form I-589, as well as the Department's reasoning
for charging the DHS-set fee for DHS-issued forms. See 85 FR at 11871.
Thus, the NPRM provided notice about any potential fee increases
occasioned by DHS's proposed rulemaking, including for asylum
applications.\35\
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\35\ The Department further notes that DHS has not assessed a
$50 fee for asylum applications filed by a UAC in removal
proceedings. 85 FR at 46809.
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The Department disagrees with commenters' concerns that a $50
filing fee would be unaffordable, thus discouraging or preventing
individuals from filing meritorious asylum claims. Cf. Ayuda I, 661 F.
Supp. at 35 (rejecting concern that increased fees would limit access
to courts). The Department agrees with DHS's position that $50 is a fee
that could be paid in one payment, would not take an unreasonable
amount of time to save, and would not be so high as to be unaffordable,
even to indigent aliens. 84 FR at 62320. The Department notes that
generalized statements and anecdotal reports about asylum seekers'
financial status do not provide information about actual hardship. To
the extent that commenters are concerned that an asylum fee could lead
to additional, higher fees for appeals or motions to reopen associated
with an asylum claim, the Department notes that fee waivers will
continue to be available for EOIR-prescribed fees pursuant to 8 CFR
1103.7(c), which remains unchanged by the rule. See 8 CFR 1103.7(c)
(``For provisions relating to the authority of the Board or the
immigration judges to waive any of the fees prescribed in paragraph (b)
of this section, see 8 CFR 1003.8 and 1003.24.''); Ayuda I, 661 F.
Supp. at 35 (``Moreover, these concerns [about deterrent effect of
increased fees] are wholly overstated inasmuch as INS regulations
excuse the requirement to pay in the event the alien certifies
inability to pay.''). This includes a motion to reopen based on an
asylum application and appeals to the BIA.
The Department recognizes commenters' concerns that asylum seekers
may face unique challenges that would make raising a substantial sum of
money difficult, including, for example, the costs expended on travel
to the United States, the one-year filing deadline, indigent status,
and waiting periods for employment authorization.\36\ The Department
also acknowledges that those seeking services from non-profit
providers, by the nature of the very services they provide, would have
clients with incomes that would make any fee challenging. The
Department, however, believes that such challenges have been properly
considered in DHS's proposal to establish a $50 fee, which falls well
below an amount that would recuperate the full cost of consideration of
asylum applications, as permitted by section 208(d)(3) of the Act (8
U.S.C. 1158(d)(3)). See 84 FR at 62319-20. The Department disagrees
that a $50 filing fee would provide traffickers and smugglers with
additional opportunities to exploit asylum seekers and commenters have
not presented evidence to support their position.
---------------------------------------------------------------------------
\36\ The Department notes that some of these factors, including
an alien's ability to pay hundreds or thousands of dollars for
travel to the United States, actually undermine the commenters'
concerns that aliens with valid asylum claims will be unable to pay
the proposed fee.
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The Department disagrees with comments that a $50 fee for asylum
applications would violate human rights or U.S. treaty obligations. The
USCIS rule is consistent with the United States' obligations as a
signatory to the 1967
[[Page 82769]]
Protocol, which incorporates Articles 2 through 34 of the Refugee
Convention.\37\ The rule is also consistent with U.S. obligations under
Article 3 of the CAT, as codified in the regulations. See 8 CFR
1208.16-18.
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\37\ The Department also notes that neither of these treaties is
self-executing and therefore they are not directly enforceable in
U.S. law unless implemented under domestic law. INS v. Stevic, 467
U.S. 407, 428 n.22 (1984) (``Article 34 merely called on nations to
facilitate the admission of refugees to the extent possible; the
language of Article 34 was precatory and not self-executing.''); Al-
Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) (``The 1967
Protocol is not self-executing, nor does it confer any rights beyond
those granted by implementing domestic legislation.''); Auguste v.
Ridge, 395 F.3d 123, 132 (3d Cir. 2005) (CAT ``was not self-
executing''); see also INS v. Stevic, 467 U.S. 407, 428 n.22 (1984)
(describing provisions of the Convention and Protocol as ``precatory
and not self-executing'').
---------------------------------------------------------------------------
Specifically, to the extent that the asylum application fee is
considered a ``fiscal charge'' for purposes of Article 29(1) of the
Refugee Convention--as incorporated by reference in the 1967 Protocol--
the proposed $50 fee would be in accord with that provision, which
limits fiscal charges charged to refugees to an amount not higher than
those charged by the United States to U.S. nationals in similar
situations. And Congress, as evidenced by the express authority
conferred in section 208(d)(3) of the Act (8 U.S.C. 1158(d)(3)), has
clearly indicated that charging a fee for asylum applications would not
run contrary to U.S. obligations. See INA 208(d)(3), 8 U.S.C.
1158(d)(3) (``The Attorney General may impose fees for the
consideration of an application for asylum'').
Because the USCIS rule does not impose a fee for statutory
withholding of removal or protection under the CAT regulations, the
rule would still be consistent with the 1951 Refugee Convention's, 1967
Protocol's, and the CAT's non-refoulement provisions. See R-S-C- v
Sessions, 869 F.3d 1176, 1188 n.11 (10th Cir. 2017) (explaining that
``the Refugee Convention's nonrefoulement principle--which prohibits
the deportation of aliens to countries where the alien will experience
persecution--is given full effect by the Attorney General's
withholding-only rule''); Cazun v. Att'y Gen. U.S., 856 F.3d 249, 257 &
n.16 (3d Cir. 2017); Ramirez-Mejia v. Lynch, 813 F.3d 240, 241 (5th
Cir. 2016); Maldonado v. Lynch, 786 F.3d 1155, 1162 (9th Cir. 2015) (en
banc) (explaining that Article 3 of the CAT, which sets out the non-
refoulement obligations of signatories, was implemented in the United
States by the Foreign Affairs Reform and Restructuring Act of 1998,
Public Law 105-277, sec. 2242(b), 112 Stat. 2681, 2631-822) and its
implementing regulations); see also INS v. Cardoza-Fonseca, 480 U.S.
421, 429, 441 (1987) (``[Withholding of removal] corresponds to Article
33.1 of the Convention . . . . [Asylum], by contrast, is a
discretionary mechanism which gives the Attorney General the authority
to grant the broader relief of asylum to refugees. As such, it does not
correspond to Article 33 of the Convention, but instead corresponds to
Article 34.'' (emphasis in original)).
Commenters' assertions that statutory withholding of removal and
protection under the CAT regulations essentially trap individuals in
the United States are beyond the scope of this rulemaking, as nothing
in the NPRM purported to propose changes to the regulations governing
eligibility for those forms of protection or the restrictions attendant
to them. Similarly, the NPRM did not purport to overrule Matter of I-S-
& C-S-, 24 I&N Dec. 432 (BIA 2008), which requires the entry of an
order of removal for aliens granted statutory withholding of removal or
protection under the CAT regulations. Thus, although an individual who
has been granted these forms of protection is not guaranteed return to
the United States if he or she leaves the country, these forms of
protection do not prevent individuals from traveling outside the United
States. See Cazun, 856 F.3d at 257 n.16. To the extent commenters
raised concerns that recipients of statutory withholding or CAT
protection must apply annually for work authorization, the Department
does not adjudicate applications for employment authorization, and such
concerns are far beyond the scope of this rule.
In response to comments regarding previous rulemakings by the
former INS, which decided not to implement a fee requirement for the
Form I-730, Refugee/Asylee Relative Petition because aliens generally
filed such petitions shortly after their arrival to the United States,
the Department notes that the cited rulemaking was published in the
Federal Register on March 3, 1993, 58 FR 12146, several years prior to
Congress's express grant of authority to the Department to charge fees
for asylum applications, employment authorizations, and asylum-related
adjustment of status. Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Public Law 104-208, div. C, tit. V, 110
Stat. 3009, 3009-693 (Sep. 30, 1996); INA 208(d)(3), 8 U.S.C.
1158(d)(3). The Department further notes that adjudication of the Form
I-730 is not comparable to the significantly lengthier and more in-
depth adjudication required for a Form I-589. At the same time, the
increased volume of applications for asylum represents a significant
increase in the Department's adjudicatory workload. See Exec. Office
for Immigration Rev. Adjudication Statistics: Total Asylum
Applications, Exec. Office for Immigration Rev., July 14, 2020, https://www.justice.gov/eoir/page/file/1106366/download (showing a significant
increase in asylum applications filed with EOIR in recent fiscal years,
from a low of 32,888 in Fiscal Year 2010 to a record high of 211,794 in
Fiscal Year 2019). Thus, the Department does not believe that the
former INS's articulated reasons for not implementing a fee are
persuasive when applied to current considerations regarding the Form I-
589. Regardless, whether to charge a fee for a Form I-730 does not
necessarily dictate whether a fee for the Form I-589 is warranted, and
although DHS has promulgated a $50 fee for the latter, it maintains no
fee--nor even a proposed fee--for the former.
The Department disagrees with comments that it would be irrational
to charge a filing fee for an asylum claim filed on a Form I-589, but
not for statutory withholding of removal or CAT claims filed on the
same form. The Department reiterates that DHS is acting within its
express statutory authority to implement such fees for asylum claims
for the reasons articulated above. See INA 208(d)(3), 8 U.S.C.
1158(d)(3).
The Department also disagrees with commenters' assertions that
asylum and withholding of removal demand identical considerations. As
discussed above, asylum is a discretionary form of relief, while
statutory withholding of removal is not. Accordingly, for asylum
claims, adjudicators must consider additional evidence with respect to
whether an alien merits a favorable exercise of discretion in granting
asylum relief. As a discretionary form of relief, asylum is also
subject to numerous additional statutory and regulatory requirements
that statutory withholding of removal is not. For example, asylum
seekers are subject to filing deadline requirements, limitations on
multiple applications for relief, numerous criminal exceptions to
eligibility, the firm-resettlement bar, and the safe-third country bar.
See INA 208(a)(2), 8 U.S.C. 1158(a)(2); INA 208(b)(2), 8 U.S.C.
1158(b)(2). Additionally, the Attorney General has the express
authority to impose additional limitations and conditions on asylum
eligibility. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).
[[Page 82770]]
9. Violates the Administrative Procedure Act
Comment: Commenters stated generally that the Department should
withdraw the NPRM for procedural deficiencies, including that the
Department did not adequately justify the rule, the rule was arbitrary
and capricious, and the rule was outside of the scope of the
Department's delegated authority. Specifically, commenters stated that
the Department did not give adequate time for comments. Commenters
objected to the Department's choice to allow for a 30-day comment
period in lieu of a 60-day comment period and stated that the
Department did not explain the basis for this decision. Commenters
stated that the Department acknowledged that the proposed rule was a
``significant regulatory action'' pursuant to Executive Order 12866,
but it failed to discuss or provide a rational basis for departing from
the mandated 60-day comment period for such actions. Some commenters
suggested that a 30-day comment period deviated from the Department's
``usual'' comment period of 60 days.
Commenters expressed confusion over the urgency of having a shorter
comment period after the Department waited over thirty years to adjust
fees. Commenters noted that, because EOIR had not changed its fees in
over three decades, it was even more important for the public to have
sufficient notice and, before commenting, time to understand EOIR's
reasons and methodology behind the proposed increases, as well as how
EOIR plans to ensure that vulnerable, low-income individuals will have
access to proceedings. Commenters suggested that, on this basis, the
Department should withdraw the NPRM and suggested that, if it were to
reissue the rule in the future, the Department should allow for a
longer comment period.
Commenters stated that they did not have sufficient notice because
the NPRM did not adequately explain a DHS proposed rule that is cross-
referenced in the regulatory language and that proposed rule's
potential impact on an asylum applicant's ability to apply for fee
waivers for appeals. Commenters asserted that the NPRM's stated purpose
of balancing accessibility of the EOIR applications and motions for
which the Department imposes a fee against saving taxpayer money was
inadequate because EOIR has not taken other less expensive, burdensome,
or prejudicial procedural improvements that would speed up the
resolution of cases and potentially reduce costs associated with
adjudications. Commenters stated that the Department did not present
sufficient facts showing that it fully considered the public policy
interest in accessibility to EOIR proceedings and that the Department
instead relies on conclusory statements. Commenters stated that, rather
than reducing the costs of adjudications, the proposed rule limited
access to adjudications.
Commenters noted that numerous immigration and legal service
providers requested an extension of the 30-day comment period. The
commenters noted that USCIS had previously complied with a similar
request in response to its own proposed rule to raise USCIS application
fees, see 84 FR 67243 (Dec. 9, 2019), but the Department neither
extended the comment deadline nor responded to the request. Commenters
also stated that the Department should withdraw the NPRM or extend the
comment period due to the novel coronavirus (``COVID-19'') pandemic.
Specifically, commenters stated that it was unreasonable to expect the
public to submit comments by March 30 on the changes proposed as they
adjusted to new challenges, such as learning to perform their jobs
remotely, not having access to hard copies of resources and background
materials, and having to provide childcare. A commenter also stated
that, in response to the pandemic, ``immigration procedures have been
changing on a daily basis, forcing immigration practitioners to keep up
and inform clients of this ever-changing landscape.''
Commenters asserted that numerous organizations submitted a letter
requesting that the comment period be delayed due to the disruptions
caused by the COVID-19 pandemic, and the Department has not responded
to this request. Commenters stated that an additional 30-day comment
period would ensure that individuals who are sick or caring for
somebody who is sick would still have the opportunity to submit a
public comment.
Commenters also expressed a belief that the Department should not
implement the proposed fee increases at this time due to the economic
effects of the COVID-19 pandemic. At least one commenter acknowledged
that while the Department could implement the rule despite public
comments, it would need to read all comments received and show that
they were considered, and that such consideration might slow down
efforts for the Department to move forward with the rulemaking process.
Commenters also objected to the NPRM because it did not include any of
the underlying data that the public would need to assess whether the
Department's fee calculation was accurate or reasonable. Commenters
acknowledged that the Department explained the process that it employed
when polling its staff about work flow concerning particular types of
applications, but stated that the Department only provided the
conclusions, and not the underlying data, as part of the rulemaking
record. Commenters stated that they had requested this data and the
underlying study from OMB but that they had not received the
information by the date of their comment submission. Commenters also
stated that the Department did not state the amount of time expended by
each person involved in an application for relief. Commenters asserted
that this lack of information rendered it impossible for the public to
assess whether the proposed fee structure is arbitrary and that the
Department should withdraw the NPRM because it did not make this data,
including the 2018 study, publicly available. Commenters also stated
that they had submitted FOIA requests to the Department, seeking data
on the number of fee waivers that had been filed, granted, and denied
and additional information regarding the underlying cost study that was
the basis for the NPRM. Commenters explained that if the Department
raises EOIR fees, it would be crucial to make fee waivers broadly
available and that such information was important to providing
comprehensive responses to the NPRM.
Commenters stated that, as of the date of their comment submission,
they had not received a response to the FOIA request, and that DOJ
should withdraw the NPRM based on its failure to provide this
information. Several commenters qualified their comment responses,
stating that their responses were as complete as possible given the
lack of data provided by the Department but that their responses could
not be complete without such data. Commenters stated that the
Department had not given an explanation for why it had not increased
EOIR fees for 33 years. Due to the lack of an explanation, commenters
presumed that it was a policy choice designed to keep fees affordable
to allow access to justice in the immigration system. Commenters stated
that the Department erroneously interpreted the statutory term ``fair''
as it related to the fee determinations. Commenters stated that it was
irrational for the Department to suggest that the proposed fees were
intended to significantly increase revenue for the Federal Government
but was also not an
[[Page 82771]]
economically significant rule under Executive Order 12866, i.e., a rule
that would increase revenue by $100 million or more. Other commenters
noted that the proposed rule would not comply with Executive Orders
12866 and 13563 because the Department did not accurately assess the
costs and benefits, determine that the benefits outweigh the costs,
maximize the net benefits, or tailor the proposed rule to impose the
least burden on society. Commenters stated that the Department failed
to consider the costs that deterring individuals from pursuing
meritorious claims would have on individuals, families, employers,
State and local governments, the economy, and society as a whole.
Response: The Department disagrees with comments suggesting that
the NPRM, rule, or rulemaking process violates the APA. The fees are
based on a cost study, and the Department is acting within its
statutory authority to reflect the costs associated with present-day
costs after more than 30 years without adjusting fees. As stated above,
the Department is releasing the underlying data from its 2018 fee study
in response to multiple requests for it. The Department is also
including its updated dataset for full transparency.
Regarding commenters' further statements that the Department has
not responded to commenters' FOIA request(s), the Department will
continue to respond to any FOIA requests in accordance with FOIA and
the relevant regulations. Specific concerns regarding EOIR's FOIA
responses should be directed to the EOIR Office of General Counsel:
U.S. Department of Justice, Executive Office for Immigration Review,
Office of General Counsel--FOIA Service Center, 5107 Leesburg Pike,
Suite 2150, Falls Church, VA 22041, Email address:
EOIR.FOIARequests@usdoj.gov, FOIA Public Liaison: Crystal Souza,
Telephone: 703-605-1297.
The Department believes the 30-day comment period was sufficient to
allow for a meaningful public input, as evidenced by the significant
number of public comments received, including 157 detailed comments
from interested organizations. Further, commenters did not suggest or
indicate what additional issues the comment period precluded them from
addressing; to the contrary, the comments received reflect both a
breadth and a level of detail that suggest that the period was more
than sufficient. Additionally, to the extent that commenters referred
to other proposed rulemakings as a basis for asserting the comment
period should have been longer, their comparisons are inapposite. No
other proposed rulemaking cited by commenters addressed a small,
discrete number of applications that are well established and with
which aliens and practitioners have been quite familiar with for
decades. In short, the Department acknowledges and has reviewed
commenters' concerns about the 30-day comment period, but those
comments are unavailing for all of the reasons given herein.
The APA does not require a specific comment period length. See
generally 5 U.S.C. 553(b)-(c). Similarly, although Executive Orders
12866 and 13563 provide that the comment period should generally be at
least 60 days, it is not required. Federal courts have presumed 30 days
to be a reasonable comment period length. For example, the D.C. Circuit
recently stated that ``[w]hen substantial rule changes are proposed, a
30-day comment period is generally the shortest time period sufficient
for interested persons to meaningfully review a proposed rule and
provide informed comment,'' even when ``substantial rule changes'' are
proposed. Nat'l Lifeline Ass'n v. FCC, 921 F.3d 1102, 1117 (D.C. Cir.
2019) (citing Petry v. Block, 737 F.2d 1193, 1201 (D.C. Cir. 1984)).
Litigation has mainly focused on the reasonableness of comment periods
shorter than 30 days, often in the face of exigent circumstances. See,
e.g., N.C. Growers' Ass'n, Inc. v. United Farm Workers, 702 F.3d 755,
770 (4th Cir. 2012) (analyzing the sufficiency of a 10-day comment
period); Omnipoint Corp. v. FCC, 78 F.3d 620, 629-30 (D.C. Cir. 1996)
(7-day comment period); Nw. Airlines, Inc. v. Goldschmidt, 645 F.2d
1309, 1321 (8th Cir. 1981) (7-day comment period).
The Department is not obligated to extend the notice and comment
period at the public's request. Regarding DHS's extension of the
comment period for its fee rule, the Department notes that, at the time
DHS extended the comment period, DHS provided supplemental information
that changed some of the calculations underlying the proposed rule. 84
FR at 67243. The Department finds the circumstances of DHS's extension
distinguishable from the Department's proposed rule, which does not
involve any relevant changed information . The Department believes that
the COVID-19 pandemic has no effect on the sufficiency of the 30-day
comment period. Employers around the country have adopted telework
flexibilities to the greatest extent possible, and the Department
believes that interested parties can use the available technological
tools to prepare their comments and submit them electronically. Indeed,
nearly every comment was received in this manner. Further, some of the
issues identified by commenters--e.g., childcare--would apply
regardless of the length of the comment period and would effectively
preclude rulemaking by the Department for the duration of the COVID-19
pandemic. The Department finds no basis to suspend all rulemaking while
the COVID-19 pandemic is ongoing. Overall, the Department believes that
the COVID-19 pandemic has not limited the public's ability to
meaningfully engage in the notice and comment period.
In addition, regarding commenters' concerns that the Department
should delay implementation of this rule due to the economic effects of
the COVID-19 pandemic, the Department again emphasizes that an alien
who is unable to pay the fee may, consistent with current practice,
apply for a fee waiver.
The Department gave the public sufficient notice of the rule's
impact as it cross-references DHS's proposed rule. See 84 FR at 62280.
The Department notes that this rulemaking does not alter EOIR's long-
standing procedures with respect to how DHS-issued forms are treated in
EOIR proceedings, and thus the public has had adequate notice that any
changes that DHS makes to its fees through its own rulemaking would
affect fees for DHS-issued forms filed with EOIR. See 8 CFR
1103.7(b)(4)(ii). While this rule updates cross-references to match
DHS's proposed changes to DHS's regulations, the practices remain the
same. To the extent that commenters believe they should have additional
time for notice and comment to understand the Department's plans to
ensure that low-income individuals will continue to have access to
proceedings, the Department notes that its procedures with respect to
fee waivers remain the same, including fee waivers associated with DHS-
issued forms. 8 CFR 1103.7(c).
In response to commenters' concerns that this rulemaking does not
fully accomplish balancing costs to the taxpayer against accessibility
to the immigration courts, the Department notes, as discussed in part
I.B, supra, that it fully considered the public interest, including
access to the immigration courts, balanced against the cost to
taxpayers in electing to not recoup the full costs of adjudications in
assessing fees. The Department's policy has not changed since the last
time it assessed fees. As when the Department last updated EOIR's fees,
the proposed changes in the NPRM ``are necessary to place the financial
burden of providing special services and benefits, which do
[[Page 82772]]
not accrue to the public at large, on the recipients.'' Powers and
Duties of Service Offices; Availability of Service Records, 51 FR
39993, 39993 (Nov. 4, 1986). Thus, fees ``have been adjusted to more
nearly reflect the current cost of providing the benefits and services,
taking into account public policy and other pertinent facts.'' Id. In
short, as it did previously, the Department fully considered public
interest when reviewing and updating its fees for the first time in
over 30 years.
Moreover, as the Department discussed in the NPRM, it intentionally
did not include a variety of costs in its fee analysis to more fully
ensure the fees remained at a level reflected by the public interest.
85 FR at 11869 (``EOIR's decision not to include overhead and non-
salary benefits in the calculation of actual costs also accounts for
the public interest in having non-parties bear some of the cost burden
for filing documents associated with proper application of the law as
it pertains to the statutory right to appeal or apply for certain forms
of relief.''). Factoring in additional costs would almost inevitably
have led to even higher proposed fees, which is a result commenters
would have opposed even though, paradoxically, some of those same
commenters criticized the Department for not conducting further
analyses that would have likely required including such costs. In
short, the Department recognizes that most commenters, as a matter of
policy preference, oppose any fee increase at all because fees have
remained artificially and inappropriately low for over three decades.
Nevetheless, commenters did not persuasively explain why the Department
should maintain that posture, especially when it conflicts with
longstanding law and policy, nor identify shortcomings in the
Department's analysis that, if remedied, would not have actually
increased fees to a greater degree.
The Department disagrees with comments suggesting that this rule
would deter individuals from pursuing meritorious claims, though it
acknowledges that it may have some deterrent effect on individuals
pursuing non-meritorious or otherwise dilatory claims. Nevertheless,
such speculative deterrent effects are not supported by any evidence
presented to the Department.
In response to commenters' statements that the Department had not
adequately explained why it has not increased fees for 33 years, the
Department notes that such a lack of action was a shortcoming by the
agency that it is currently remedying, as stated in the NPRM. See 85 FR
at 11869 (``EOIR is now proposing this rule to remedy the failure to
update the fees in past years.''). Regardless of the reason for this
lapse in reassessment, the Department is presently acting within its
authority to charge fees, as discussed in the NPRM. 85 FR at 11872; see
31 U.S.C. 9701(a)-(b); Circular No. A-25 Revised at sec. 8(e); INA
286(m), 8 U.S.C. 1356(m).
The Department believes that the newly established fees are fair.
The Department has set the new fees based upon data gathered from an
activity-based cost analysis. As stated in the NPRM, EOIR's calculation
of fees has factored in 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
11870; see Ayuda I, 661 F. Supp. at 36 (dismissing position that fees
were ``arbitrarily and capriciously unreasonable'' where former INS-
implemented fees that were ``no greater than the rough actual cost of
providing the services'').
Regarding commenters' allegations that the Department's analysis
under Executive Order 12866 is inadequate, the Department disagrees.
The Department has properly considered the rule's economic effects and
determined, in coordination with OMB, that the rule is not likely to
have a significant economic effect. Moreover, as the difference in fee
collections illustrates, the impact on the economy is clearly less than
$100 million.
10. Violates Due Process
Comment: Commenters argued that immigration proceedings must not
infringe on aliens' due process rights, citing Salgado-Diaz v.
Gonzales, 395 F.3d 1158, 1162 (9th Cir. 2005) (as amended)
(``Immigration proceedings, although not subject to the full range of
constitutional protections, must conform to the Fifth Amendment's
requirement of due process.''), and Gutierrez v. Holder, 662 F.3d 1083,
1091 (9th Cir. 2011) (``A full and fair hearing is one of the due
process rights afforded to aliens in deportation proceedings.'').
Similarly, relying on Zadvydas v. Davis, 533 U.S. 678, 690 (2001),
commenters asserted that the increased fees act as barriers to appeal
orders of removal, thus violating immigrants' constitutionally
protected due process rights.
Commenters asserted that the proposed fee increases would make it
impossible for many noncitizens to pursue their statutory rights to
seek many of the specific applications, appeals, and motions at issue
in the NPRM. See, e.g., INA 240A, 8 U.S.C. 1229b (cancellation of
removal); INA 240(c)(5), 8 U.S.C. 1229a(c)(5) (appeals of immigration
judge decisions); INA 101(a)(47)(B), 8 U.S.C. 1101(a)(47)(B) (same);
INA 240(c)(6), 8 U.S.C. 1229a(c)(6) (motions to reconsider); INA
240(c)(7), 8 U.S.C. 1229a(c)(7) (motions to reopen); INA 244(a), 8
U.S.C. 1254(a) (1995) (suspension of deportation). Commenters stated
that the rule even appears to have been designed in order to yield such
outcomes and that ``[w]here fees have an impact on individuals' ability
to exercise their statutory and regulatory rights, agencies necessarily
must consider ability to pay to avoid infringing upon those rights.''
Relatedly, commenters stated that the cost of pursuing relief could
violate due process if it forecloses a party's opportunity to be heard,
citing Boddie, 401 U.S. at 380 (``Just as a generally valid notice
procedure may fail to satisfy due process because of the circumstances
of the defendant, so too a cost requirement, valid on its face, may
offend due process because it operates to foreclose a particular
party's opportunity to be heard.''). Commenters disagreed with the
NPRM's reasoning that unmet costs justified fee increases, explaining
that the U.S. Supreme Court rejected that reasoning as a sufficient
basis for denying indigent individuals access to the courts. See id. at
381 (rejecting justification of fees based on allocating scarce
resources and deterring frivolous litigation and finding that ``none of
these considerations is sufficient to override the interest of these
plaintiff-appellants in having access to the only avenue open for
dissolving their allegedly untenable marriages.'').
Commenters expressed concerns that the proposed rule continues
administrative trends to speed up removals without providing
noncitizens with fair opportunities to present their cases in court.
Commenters opined that the current administration was taking steps to
emphasize deporting aliens over due process in EOIR proceedings and
stated that it had taken similar steps to turn USCIS, a benefits-
granting agency, into an enforcement agency.
Commenters alleged that EOIR must ensure that fees remain
``accessible'' and ``affordable'' in order to ensure due process is
extended to all individuals, regardless of income. The proposed fees,
commenters alleged, are neither accessible nor affordable, especially
in the context of appeals, given that aliens would have only 30 days
from the immigration judge decision to file an appeal and pay the
increased fee.
[[Page 82773]]
Response: The rule does not infringe upon due process rights.
Aliens continue to receive a ``full and fair hearing,'' see Gutierrez,
662 F.3d at 1091, before an immigration judge to present their case.
Gutierrez further explained that the hearing must not be ``so
fundamentally unfair that the alien was prevented from reasonably
presenting his case.'' Id. at 1091 (quoting Ibarra-Flores v. Gonzales,
439 F.3d 614, 620 (9th Cir. 2006)). ``Where an alien is given a full
and fair opportunity to be represented by counsel, prepare an
application for . . . relief, and to present testimony and other
evidence in support of the application, he or she has been provided
with due process.'' Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926-27
(9th Cir. 2007). The rule does not alter proceedings before an
immigration judge; further, statutory provisions cited by commenters
remain unchanged. Appeals, motions, and other forms of relief remain
available; the rule only updates the fees to file applications for such
relief while at the same time keeping fee waivers as an available
option for aliens who cannot pay the fee. Accordingly, allegations that
the rule proposed to change proceedings in a way that deprives aliens
of due process is unfounded.\38\
---------------------------------------------------------------------------
\38\ Due process does not require a right to appeal at all, even
in the criminal context. Halbert v. Michigan, 545 U.S. 605, 610
(2005) (``The Federal Constitution imposes on the States no
obligation to provide appellate review of criminal convictions.''
(citing McKane v. Durston, 153 U.S. 684, 687 (1894)); accord
Guentchev v. INS, 77 F.3d 1036, 1037-38 (7th Cir. 1996) (``The
Constitution does not entitle aliens to administrative appeals. Even
litigants in the federal courts are not constitutionally entitled to
multiple layers of review. The Attorney General could dispense with
the Board and delegate her powers to the immigration judges, or
could give the Board discretion to choose which cases to review (a
la the Appeals Council of the Social Security Administration, or the
Supreme Court exercising its certiorari power).'').
---------------------------------------------------------------------------
Likewise, the rule is distinct from Zadvydas, 533 U.S. 678, which
was relied upon by commenters. Zadvydas examined liberty interests in
the context of detention that was indefinite and possibly permanent.
Id. at 696. In fact, the Court explicitly provided that ``the issue we
address is whether aliens that the Government finds itself unable to
remove are to be condemned to an indefinite term of imprisonment within
the United States.'' Id. at 695. The rule at hand, however, involves
updating fees in accordance with section 286(m) of the Act (8 U.S.C.
1356(m)) and the agency's authorities for certain appeals,
applications, and motions filed with EOIR. See generally 85 FR 11866.
Updating fees to recover costs for providing services, in accordance
with statutory authority, does not mandate or implicate detention in a
way that Zadvydas would directly apply, and not all processes provided
by law and regulation are constitutionally required. Nevertheless, the
rule comports with foundational principles of due process, outlined in
Zadvydas and numerous cases preceding and subsequent to that decision,
because it does not alter regulations providing notice to aliens (8 CFR
1003.18(a), (b)), the alien's opportunity to present his or her case (8
CFR 1240.10), the option to be represented by counsel (8 CFR
1003.16(b), 1240.3), the ability to file an application for relief (8
CFR 1240.1(a), 1240.11), or the opportunity to provide evidence or
testimony in support of the application (8 CFR 1240.7).
As Section II.C.4 of this preamble extensively explains, the rule
preserves the ability to submit fee waiver requests. Contrary to
commenters' assertions, the Department considered aliens' ability to
pay in updating the fees and subsequently retaining the fee waiver
process, as reflected in the NPRM. The Department explained that
``[w]hile EOIR recognizes that the new fees will be more burdensome,
fee waivers are still possible for those who seek them'' and,
accordingly, that EOIR would continue to ``entertain requests for fee
waivers . . . and waive a fee for an application or motion upon a
showing that the filing party is unable to pay.'' 85 FR at 11871,
11874.
The Department disagrees with commenters' assertions that Supreme
Court precedent undermines the NPRM's reasoning that because EOIR's
processing costs ``consistently exceed the assessed fees,'' updating
fees is necessary to ``recoup some of [the Government's] costs when
possible.'' 85 FR at 11870. In Boddie, 401 U.S. 371, one case cited by
the commenters, the Court considered a state's required $60 fee to file
for divorce. Because payment of the fee determined ``access to the
judicial process in the first instance'' and the appellants had proven
their inability to afford such fee, the Court found that the fee barred
individuals ``from the only forum effectively empowered to settle their
disputes,'' thus depriving them of their due process rights. Id. at
375-76. However, Boddie's holding was based on the fact that plaintiffs
were prevented altogether from accessing the judicial process required
to end their marriages unless they paid the $60 fee. In contrast,
separate and apart from this rule, aliens are provided an opportunity,
at no charge, to present their case in a hearing before an immigration
judge, and a fee waiver remains available to aliens who are unable to
pay for the application or motion, including an appeal, they wish to
pursue. Further, the updated fees apply to certain applications for
discretionary forms of relief, in which aliens have no due process
rights,\39\ and applications for appeals and motions, which are filed
after an immigration judge issues a final decision. Accordingly, the
rule does not wholly preclude aliens from their opportunity to be
heard, and so the holding in Boddie is distinguishable.
---------------------------------------------------------------------------
\39\ ``[B]ecause discretionary relief is necessarily a matter of
grace rather than of right, aliens do not have a due process liberty
interest in consideration for such relief.'' United States v.
Torres, 383 F.3d 92, 104 (3d Cir. 2004); see also Ticoalu v.
Gonzales, 472 F.3d 8, 11 (1st Cir. 2006); Smith v. Ashcroft, 295
F.3d 425, 429-30 (4th Cir. 2002); United States v. Lopez-Ortiz, 313
F.3d 225, 231 (5th Cir. 2002); Oguejiofor v. Att'y Gen., 277 F.3d
1305, 1309 (11th Cir. 2002).
---------------------------------------------------------------------------
The cases cited by commenters are also distinguishable because they
involve, as commenters note, discrimination based on poverty, but the
rule does not discriminate on any basis. Fees apply equally to all
applicants regardless of financial status, and fees may be waived upon
a showing of the filing party's inability to pay. See 8 CFR
1003.8(a)(3), 1003.24(d), 1103.7(c). The rule does not discriminate on
its face or in its application--it does not act as a blanket
prohibition on people without financial means from submitting the
applications, appeals, and motions at issue. Rather, the fees apply
equally to all aliens unless an alien's fee waiver request is granted
by an immigration judge or the BIA, based upon a showing of the alien's
inability to pay. See 85 FR at 11871.
The Department disagrees that the rule acts to ``speed up
removals'' without providing opportunities for aliens to present their
cases. The rule only increases fees for certain applications, appeals,
and motions due to the rising adjudication costs that greatly exceed
current fees. The rule does not alter proceedings in any way. Contrary
to commenters' claims, the Department does not emphasize deporting
aliens over due process: Immigration judges and the BIA continue to
exercise independent judgment and discretion in applying the
immigration laws to each unique case before them. 8 CFR
1003.1(d)(1)(ii), 1003.10(b). Further, commenters' claims alleging
USCIS's enforcement-related activities impeding due process are
unrelated to EOIR's rule. As part of DOJ, EOIR is a separate agency
from USCIS, which is part of DHS. See Operational and Support
Components, Department of Homeland Security, https://
[[Page 82774]]
www.dhs.gov/operational-and-support-components (last updated Nov. 17,
2018).
By retaining the current fee waiver process, the Department ensures
that aliens who aver that they are unable to pay have an avenue to
request consideration of an appropriate application, appeal, or motion.
The Board has possessed explicit, discretionary authority to waive an
appeal or motion fee since 1953, 18 FR 3526, 3527 (Jun. 11, 1953), and
there is no evidence that the Department's longstanding fee waiver
process is inadequate or ineffective to address situations in which an
alien is genuinely unable to pay a relevant fee. Regarding the
commenters' concerns with the 30-day period from an immigration judge
decision to file an appeal and pay the fee, the Department again notes
that the public will be on notice about the new fee amount as of this
rule's publication. 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.
11. Fee Increases Will Have Negative Effects on EOIR/Immigration System
Comment: Commenters indicated a wide range of disparate concerns
that the NPRM will have potential negative effects on the functioning
of EOIR and the U.S. immigration system.
Commenters stated that it would exacerbate the ``already strenuous
situation on our southern border,'' the ``dismal . . . asylum system,''
and aliens' access to courts. Relatedly, commenters stated there was no
reason to believe that updated fees would improve the BIA's case
completion rate, which they noted has continuously decreased. Another
commenter explained that the NPRM would discourage even those with
meritorious claims from pursuing them in EOIR proceedings.
Commenters explained that the rule diminished the institutional
integrity of EOIR and would have cumulative negative, and in some cases
irreversible, effects on aliens who would be unable to afford the fees,
those aliens' families, and their communities. One commenter
anticipated increased crime in these communities because aliens would
lack options for relief. One commenter expressed concern that the NPRM
would cause predatory lenders to prey on aliens.
Several commenters opined that the increased fees would incentivize
unlawful immigration, which would also lead to more undocumented
workers in the United States. Another commenter further explained that
unlawful immigration would lead to a shift in costs from adjudication
(EOIR) to enforcement (ICE). One commenter stated that no evidence
exists to demonstrate that possible difficulties with processing upon
entry has any deterrent effect on aliens' decisions to enter the United
States.
Many commenters opposed the NPRM because they alleged that it would
negatively affect representation rates. Some commenters expressed
concern that the increased fees would place aliens in a position of
choosing between paying the fee or obtaining counsel. Commenters
explained that aliens who choose to pay the fee and have nothing left
to obtain counsel would then appear pro se for their hearings. One
commenter stated that this would ``interfere with the statutorily
granted right to counsel for alien respondents,'' while another
commenter stated that this violated the ``American principle of legal
representation for all.'' One commenter stated that ``substantial
evidence [shows] that having counsel makes a critical difference in the
outcome of one's case.''
Numerous commenters expressed concerns that the rule would
negatively affect legal service providers. For example, commenters
emphasized that legal aid organizations, small firms, and attorneys
providing pro bono services would be unable to routinely pay the fees
for their clients. According to commenters, they would be forced to
assist fewer aliens, especially indigent aliens and children, which
would also preclude law students from gaining valuable experience and
reduce the availability of pro bono counsel generally. Commenters
further suggested that, overall, this would cause the courts additional
costs and delays. Other commenters expressed concerns that the funds
used to pay their clients' fees would come at the expense of other
programmatic elements of their budget; thus, they would be less able to
provide comprehensive services to aliens. Some commenters stated that
the higher fees and resulting fee waivers would increase the time that
an attorney spends on a case, which would compound the burden on both
legal aid organizations and firms, such that they would be more
hesitant to take these cases. Several commenters noted that attorneys
would be forced to spend more time on fee waiver applications rather
than substantive issues, which could relatedly cause them to turn away
clients for lack of time and resources to represent them. Further, one
commenter expressed concern that the increased fees would make aliens
susceptible to fraud by notarios because aliens would be forced to seek
the services of fraudulent notarios in place of licensed counsel.\40\
---------------------------------------------------------------------------
\40\ ``The term `notario publico' is particularly problematic in
that it creates a unique opportunity for deception. The literal
translation of `notario publico' is `notary public.' While a notary
public in the United States is authorized only to witness the
signature of forms, a notary public in many Latin American (and
European) countries refers to an individual who has received the
equivalent of a law license and who is authorized to represent
others before the government. The problem arises when individuals
obtain a notary public license in the United States, and use that
license to substantiate representations that they are a `notario
publico' to immigrant populations that ascribe a vastly different
meaning to the term,'' and may not realize that, in the United
States, a notary public is not authorized to provide representation
or legal assistance to individuals in immigration proceedings. About
Notario Fraud, American Bar Association, July 19, 2018, https://www.americanbar.org/groups/public_interest/immigration/projects_initiatives/fight-notario-fraud/about_notario_fraud/ (last
visited Oct. 30, 2020).
---------------------------------------------------------------------------
Some commenters expressed concern that an increase in fee waivers
would further ``backlog'' the immigration courts. A commenter explained
that immigration judges make ``bad decisions'' when under such
pressure. Other commenters explained that more aliens would file fee
waiver requests, thereby increasing the caseload in immigration courts
and at the BIA and diverting resources from substantive claims to fee
waiver adjudication. Commenters alleged that the NPRM failed to
consider this inevitable burden. One commenter explained that
increasing the caseload would further extend proceedings, forcing
derivative family members to file separate applications that would also
increase the caseload.
Commenters stated that the burden on immigration judges to
implement the $50 asylum fee would exceed the monetary gain from
charging the fee. One commenter stated that increased fees on H-1B
visas and temporary guest worker visas would hurt American businesses.
Another commenter explained that USCIS almost always issues Requests
for Evidence (USCIS Form I-797), requiring additional filing fees, to
support USCIS fee waiver requests (USCIS Form I-912).
Response: Overall, the Department finds these general concerns
about possible negative effects too speculative to warrant changes to
the NPRM, and the Department disagrees with commenters' concerns about
the rule's extensive negative impact. Nevertheless, the Department
responds to the different concerns below.
[[Page 82775]]
The Department disagrees with allegations that the rule would have
a definitive impact at the border because the rule makes no amendments
to various policies related to the border or border enforcement, only
to applications and motions submitted during immigration proceedings
before EOIR. Similarly, because the rule makes no substantive
amendments to EOIR's asylum regulations in 8 CFR part 1208, the
Department disagrees it would have an impact on the ``dismal . . .
asylum system,'' as characterized by commenters.
Commenters are correct that the BIA's case completions have
decreased or remained stagnant in recent years. See Exec. Office for
Immigration Rev. Adjudication Statistics: Case Appeals Filed,
Completed, and Pending, Exec. Office for Immigration Rev., July 14,
2020, https://www.justice.gov/eoir/page/file/1248501/download. However,
this rule is not designed to improve BIA completion rates. Instead, the
purpose is to better align the fees charged for EOIR applications and
motions with the costs of the agency to provide immigration
adjudication and naturalization services. See generally 85 FR 11866.
Further, the Department disagrees with allegations of the
widespread effects on families, communities, crime rates, and predatory
lending tactics. The Department continues to offer the same options for
relief, including fee waivers for aliens who cannot pay a fee imposed
by EOIR, and such concerns are extremely attenuated.
The Department declines to respond to commenters' speculative
concerns regarding an increase in unlawful immigration and aliens'
ability to obtain counsel, including effects on legal service
providers. As previously explained, the rule updates EOIR fees to
recover costs of the agency in providing particular services. Unlawful
immigration and access to counsel are affected by a number of factors
beyond the cost of applications and appeals, and commenters provided no
factual or policy bases for the Department to consider. Further, the
rule was not proposed to curb unlawful immigration, deter aliens from
entry, or increase aliens' access to counsel. Accordingly, the
Department finds such concerns to be mere speculation and is thus
unable to provide a response. See Home Box Office, 567 F.2d at 35
n.58.\41\ Additionally, the Department reiterates the continued
availability of fee waivers available to aliens who are unable to
afford the cost of an application or appeal. The Department also notes
that, contrary to some commenters' assertions, aliens have a right to
representation at their own expense, but the Government is not required
to provide such representation. Accordingly, the Government is also not
required to subsidize representation through artificially low fees or
by ignoring OMB and statutory directives for over three decades.
---------------------------------------------------------------------------
\41\ See also footnote 18 supra for further discussion.
---------------------------------------------------------------------------
The Department disagrees that the burden placed on aliens due to
the increased fees is excessive or undue. When calculating the fee
increase pursuant to its statutory authority, the Department carefully
balanced the public policy interest of maintaining accessibility of the
immigration courts for aliens 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.
Additionally, commenters' assertions concerning the burden of
increased fees on organizations and the private bar falls outside the
limited scope of this rulemaking.
While the Department is likewise concerned about notario fraud,
see, e.g., Exec. Office for Immigration Rev., Notario Notice (July 22,
2009), https://www.justice.gov/eoir/notarionoticenational072209, the
commenter's statement is both speculative and outside of the scope of
this rulemaking.
As to the various comments regarding the increasing pending
caseload, the Department recognizes that an increase in fee waiver
requests is possible; yet, it is the Department's view that the
increase alone will not substantially increase the burden on either the
immigration courts or the BIA. Moreover, immigration judges and Board
members have extensive experience dealing with fee waivers and would
not be expected to have any difficulty adjusting to any increase in fee
waiver requests.
Commenters' concerns related to H-1B visas, temporary guest worker
visas, and the Form I-797 are outside the scope of this rulemaking.
EOIR is a separate agency from USCIS, which is part of DHS. Relatedly,
the rule makes no substantive amendments to DHS's fees schedule, and
the Department continues to apply USCIS fees in accordance with the
regulation at 8 CFR 1103.7(b)(4)(ii).
Comment: Commenters also asserted that the proposed fees will
result in an imbalance between DHS and aliens because DHS is exempted
from paying a fee and that this imbalance may influence the future
development of the law by further exacerbating an ``asymmetry of
resources and skew outcomes in favor of removal.'' Commenters stated
that such inequity would be contrary to both Supreme Court and agency
precedent, both of which caution against allowing one party to
unilaterally control adversarial proceedings. Commenters cited
Boumediene v. Bush, 553 U.S. 723, 765 (2008), in which the Supreme
Court rejected an argument that would allow ``the political branches to
govern without legal constraint.'' Commenters also cited BIA precedent
in Matter of Diaz-Garcia, 25 I&N Dec. 794, 796 (BIA 2012), in which the
BIA held that the unlawful removal of an alien during the pendency of a
direct appeal does not deprive the BIA of jurisdiction over the case.
Specifically, the BIA rejected DHS's interpretation because it would
allow DHS ``to unilaterally deprive the [BIA] of further jurisdiction''
over a case. Id.
Commenters suggested that ICE should also be required to pay for
its appeals to the BIA, asserting that EOIR could collect a substantial
amount of fees without overburdening aliens who are defending their
rights before the courts. Commenters also suggested that DHS be
required to pay a filing fee for each Notice to Appear (``NTA'') in
addition to each Notice of Appeal. Commenters remarked that, under the
NPRM, DHS unfairly bears no costs for initiating proceedings while
aliens must pay the updated fees to appeal. Commenters relatedly
explained that if EOIR was concerned about the increased caseload, it
should charge DHS--the entity responsible for the growing caseload due
to its changed enforcement priorities--for filing NTAs and Notices of
Appeal, rather than charge aliens defending themselves with
applications they are statutorily entitled to file. Similarly, one
organization suggested that, in accordance with the IOAA's mandated
consideration of fairness in charging fees, EOIR charge an
``intergovernmental user fee on federal agency filings that is
equivalent to fees imposed on noncitizen users.'' The organization
explained that such fees were ``not uncommon or rare.''
Response: Commenters' concerns that the fees will create an
imbalance between DHS and aliens and that such imbalance will in turn
affect the development of case law are entirely speculative. As
discussed above, to the extent that an alien is unable to pay the new
fees, a fee waiver remains available. 8 CFR 1003.8(a)(3), 1003.24(d).
Accordingly, aliens who are unable to pay the fee may continue to file
appeals of unfavorable immigration judge decisions should they so
choose.
[[Page 82776]]
In no way is the decision to better align the fees for these EOIR
applications and motions with the Government's adjudication costs akin
to the argument in Boumediene that the aliens in Guantanamo Bay, Cuba
did not have described rights because the Suspension Clause of the U.S.
Constitution does not apply to an area where the United States does not
claim sovereignty. Boumediene, 553 U.S. at 753-71. Here, for example,
even where DHS files the appeal with the BIA, the BIA reviews all
questions of law, discretion, and judgment de novo. See 8 CFR
1003.1(d)(3)(ii).
The Department declines to adopt commenters' suggestions to charge
new intra-governmental fees for DHS-initiated filings, such as for
NTAs. The NTA is the initial document that initiates most immigration
court proceedings. See INA 239(a), 8 U.S.C. 1229(a). Such a suggestion
is beyond the scope of the NPRM and would require contemplation and
analysis of filing fees for other government case-initiation documents
for cases adjudicated by EOIR, such as the amount of a fee for a
complaint filed with the Office of the Chief Administrative Hearing
Officer pursuant to INA 274A, 8 U.S.C. 1324a; INA 274B, 8 U.S.C. 1324b;
and INA 274C, 8 U.S.C. 1324c. Moreover, the Department declines to
impose a fee for the receipt and processing of NTAs at this time. The
Department finds that NTAs serve the purpose of ensuring that aliens in
removal proceedings are provided with written notice of important
information regarding their removal proceedings. See INA 239(a), 8
U.S.C. 1229(a). The Department similarly does not collect fees for
other notices that DHS serves upon parties for the purpose of ensuring
that parties are provided with important information that may affect
their proceedings, even where service of such notice also incurs
responsibilities on the immigration court. See, e.g., 8 CFR 1003.47(d)
(``DHS . . . shall provide a biometrics notice and instructions to the
respondent for such procedures. The immigration judge shall specify for
the record when the respondent receives the biometrics notice and
instructions and the consequences for failing to comply with the
requirements of this section.''). Moreover, no provision of the INA or
any other statute authorizes the Department to impose a fee for the
issuance of an NTA, and the Department is unaware of any authority it
possesses to do so. See Authority of the Nuclear Regulatory Commission
to Collect Annual Charges from Federal Agencies, 15 Op. O.L.C. 74, 75
(1991) (``It is settled law that federal agencies may not charge other
federal agencies user fees under [title 31] section 9701[.]'').
12. Discussion of How Funds Raised Will Be Used
Comment: Other commenters stated that the cost calculations
improperly included costs that EOIR incurred for actions that only
helped DHS, and commenters disagreed that fee proceeds resulting from a
fee increase in accordance with such calculations should fund those
actions. For example, commenters suggested that the Department should
not consider the following costs to the agency: Wired network access
for ICE in immigration court; spending additional time scrutinizing
respondent filings; maintaining databases that immediately notify ICE,
but not respondents, of EOIR rulings; establishing and maintaining VTC;
new immigration judge training; EOIR trainings; and cases that circuit
courts have found to be improper. Some commenters suggested that EOIR
was seeking to profit off of aliens who appear before the court.
Commenters stated that the Department's reliance on the IOAA, section
286(m) of the Act (8 U.S.C. 1356(m)), and Ayuda II, 848 F.2d at 1301,
as current sources of authority was misguided because those sources of
authority predate the Homeland Security Act of 2002 (``HSA''), Public
Law 107-296, 116 Stat. 2135. Commenters also generally disagreed with
the Department's discussion of Ayuda I, Ayuda II, and National Cable
Television Ass'n, 554 F.2d 1094, in the NPRM.
One commenter stated that despite the Department's position that it
is permitted to charge ``user fees'' to recipients who receive
``special benefits,'' 85 FR at 11866-67, aliens in removal proceedings
are not voluntarily accessing a benefit system, unlike aliens
affirmatively seeking benefits from USCIS. Instead, they are being
```prosecuted' '' by DHS for immigration violations. Commenters
acknowledged that immigration court proceedings are civil, but
nonetheless asserted that aspects of the system are more akin to
criminal proceedings, and equated charging cost-prohibitive fees for
cancellation of removal, suspension of deportation, or asylum to
charging criminal defendants for making affirmative defenses in cases
in which they face prosecution.
One commenter also expressed concerns that the proposed fees that
would be collected might be transferred to ICE, ``the very agency
prosecuting and appealing these cases, and in some instances holding
the noncitizens in detention,'' and would not be used for immigration
adjudications. Specifically, commenters stated that the rulemaking did
not make clear that the proposed fees, if collected, would be used to
fund the immigration court system, citing the Board of Immigration
Appeals Practice Manual and the Immigration Court Practice Manual,
which state that EOIR fees for immigration court applications are paid
to DHS, not the Department. See Board of Immigration Appeals Practice
Manual ch. 3.4(i), Board of Immigration Appeals, https://www.justice.gov/eoir/page/file/1250701/download (last updated Feb. 20,
2020); Immigration Court Practice Manual ch. 3.4(a), Office of the
Chief Immigration Judge, https://www.justice.gov/eoir/page/file/1258536/download (last updated July 2, 2020). Commenters also asserted
that the NPRM did not state that the Department needed the fees
collected to meet its costs or that it had a funding shortfall.
Commenters opposed funding numerous immigration-related measures,
including funding for private prisons, maintaining ICE detention
facilities, hiring Border Patrol Agents, building a border wall, and
developing immigrant detention policies. Commenters suggested that
cutting costs by reducing such activities could prevent the need for
increasing fees.
Response: Commenters observed that the IOAA, section 286(m) of the
Act (8 U.S.C. 1356(m)), and the Ayuda decision predate the HSA.
However, contrary to the commenters' statements, this does not
undermine the Department's reliance on such sources of authority and
judicial guidance. Following the creation of DHS by the HSA, Congress
explicitly affirmed that ``[t]he Attorney General [retained the same]
authorities and functions under [the INA] and all other laws relating
to the immigration and naturalization of aliens as were exercised by
[EOIR], or by the Attorney General with respect to [EOIR],'' prior to
the effective date of the HSA. INA 103(g)(1), 8 U.S.C. 1103(g)(1).
These authorities and functions include the authority to promulgate
regulations; prescribe bonds, reports, entries, and other papers; issue
instructions; review administrative determinations in immigration
proceedings; delegate authority; and perform other acts as the Attorney
General determines are necessary to carry out the Attorney General's
authorities under the immigration laws. INA 103(g)(2), 8 U.S.C.
1103(g)(2). In sum, the Attorney General retained the same authority to
implement fees after passage of the HSA as before passage of the HSA,
just as the Attorney General may continue to take
[[Page 82777]]
actions related to other INA provisions that predate the HSA, such as
asylum under section 208 of the Act (8 U.S.C. 1158). The Attorney
General continues to operate under his express statutory authority to
carry out the provisions of section 286 of the Act (8 U.S.C. 1356). INA
286(j), 8 U.S.C. 1356(j) (``The Attorney General may prescribe such
rules and regulations as may be necessary to carry out the provisions
of this section.''). Commenters have not pointed to any language in the
HSA that would suggest otherwise.
Commenters are incorrect that the Department included costs that
EOIR incurs for actions that only help DHS when determining the new
fee. As stated in the NPRM, EOIR conducted a cost study that considered
the direct salary costs required for each step in the processing and
adjudications of those applications, appeals, and motions for which
EOIR levies a fee. 85 FR at 11869. The Department did not include any
other costs, such as the cost of network access, maintenance of EOIR
databases, EOIR adjudicator training, or other non-direct salary costs,
although those costs could have been included in accordance with the
law. Id.
In response to commenters' assertions that fees associated with
``adjudication and naturalization services'' do not include
adjudications before EOIR, the Department notes that no such limitation
is included in the statutory language. INA 286(m), 8 U.S.C. 1356(m). At
the time that Congress enacted section 286(m) of the Act (8 U.S.C.
1356(m)), the Department adjudicated both benefits applications
(through the former INS) that would now be adjudicated before USCIS as
well as applications submitted for purposes of removal defense.
Therefore, the term ``adjudication,'' as used in section 286(m) of the
Act (8 U.S.C. 1356(m)), can be reasonably read to include EOIR
adjudications. Further, prior to the enactment of section 286(m), the
Department had implemented a number of fees pertaining to adjudications
before EOIR, such as filing an application for a stay of deportation,
filing an application for suspension of deportation, filing an appeal
before the BIA, and filing a motion to reopen or reconsider. See 51 FR
at 39993-94; Ayuda II, 848 F.2d at 1298 n.2. Nothing in the language of
section 286(m) of the Act (8 U.S.C. 1356(m)) suggests that Congress
intended to limit or deviate from the Department's existing practice to
charge fees for adjudications associated with EOIR, and this rule
builds on this history of charging EOIR fees.
Additionally, the Department believes that both National Cable
Television Ass'n and Ayuda highlight that existing case law supports
the Department's position that the IOAA gives the Attorney General
broad authority to set fees. The Department notes that the commenters
have not cited any case law that would limit the Department's authority
to set or increase existing fees for applications and motions filed
before EOIR, so long as the fee amounts do not exceed the cost of
providing the required service, including similar services that may be
provided without charge to certain categories of aliens, and any
additional administrative costs associated with the fees collected, and
otherwise comply with the IOAA (31 U.S.C. 9701). Accordingly, the
Department disagrees with commenters' suggestions that its citations to
these cases are misguided.
The Department notes that even assuming arguendo, as commenters
asserted, that the fees described in National Cable Television Ass'n
are distinguishable from those in this rulemaking, the IOAA confers
broad authority upon agency heads, including the Attorney General, to
establish fees, as is ``unmistakably'' supported by case law. Ayuda II,
848 F.2d at 1300 (citing Nat'l Cable Television Ass'n, 554 F.2d at
1101). Accordingly, the Department has properly relied on National
Cable Television Ass'n as a source of interpretive guidance.
The Department also believes that commenters' objections to the
Department's reliance on Ayuda II as interpretive authority are
unfounded. Specifically, commenters attempted to distinguish between
Ayuda II and the proposed rule because Ayuda II was filed prior to the
enactment of section 286(m) of the Act (8 U.S.C. 1356(m)). Compare
Ayuda II, 848 F.2d 1297 (decided June 10, 1988), with Public Law 100-
459, sec. 209(a), 102 Stat. 2609 (Oct. 1, 1988) (adding subsections
(m)-(p) to section 286 of the Act (8 U.S.C. 1356)). The commenters did
not specify how a subsequent express grant of the authority that Ayuda
II determined that EOIR had, to charge fees associated with
proceedings, would undermine Ayuda II's reasoning, rather than
strengthening it. See Ayuda II, 848 F.2d at 1301 (``In light of settled
law, we are constrained to conclude that the INS fees at issue are for
a `service or thing of value' which provides the recipients with a
special benefit.''); INA 286(m), 8 U.S.C. 1356(m) (authorizing DOJ to
charge fees for immigration adjudication and naturalization services at
a level to ``ensure recovery of the full costs of providing all such
services, including the costs of similar services provided without
charge to asylum applicants or other immigrants''). Accordingly, the
Department believes that this rulemaking is well supported by Ayuda II,
848 F.2d at 1301, as well as the statutory sources of authority. See 31
U.S.C. 9701; INA 286(m), 8 U.S.C. 1356(m).
With respect to commenters' concerns that fees associated with EOIR
proceedings are not charges for ``special benefits'' pursuant to the
IOAA and Circular No. A-25 Revised, the Department notes that the term
``special benefits'' has been interpreted broadly to include fees
associated with applications and motions included in the rulemaking.
See Ayuda II, 848 F.2d at 1301 (determining that ``the breadth of the
[IOAA's] language and the courts' generous reading of the provision in
question'' require a finding that ``the INS fees at issue are for a
`service or thing of value' which provides the recipients with a
special benefit'').\42\ The Department also notes that it is not adding
any new fees for EOIR-issued forms, and that it has been charging fees
for these applications and motions since at least 1986. See 85 FR at
11866; 51 FR at 39993. To date, no authority has directed that these
fees are not ``special benefits'' pursuant to the IOAA.
---------------------------------------------------------------------------
\42\ The fees at issue included: (1) A decrease from $50 to $35
in the fee for filing a petition to classify preference status of an
alien on the basis of profession or occupation; (2) an increase from
$70 to $125 in the fee for filing an application for a stay of
deportation; (3) an increase from $75 to $100 in the fee for filing
an application for suspension of deportation; (4) an increase from
$50 to $110 in the fee for filing an appeal from any decision under
the immigration laws in any proceeding (except a bond decision) over
which the BIA has appellate jurisdiction; (5) an increase from $50
to $110 in the fee for filing a motion to reopen or reconsider any
decision under the immigration laws, with certain exceptions; and
(6) elimination of the $50 fee for filing a request for temporary
withholding of deportation. See Ayuda II, 848 F.2d at 1298 n.2.
---------------------------------------------------------------------------
Additionally, as commenters acknowledged, immigration proceedings
are civil in nature, not criminal. See INS v. Lopez-Mendoza, 468 U.S.
1032, 1038-39 (1984); Guti v. INS, 908 F.2d 495, 496 (9th Cir. 1992)
(per curiam) (holding Bail Reform Act inapplicable to immigration
proceedings). Thus, applications and motions in immigration proceedings
are not precisely analogous to affirmative defenses raised in criminal
proceedings. Moreover, even if they were akin to affirmative defenses,
Congress has not directed courts to recoup adjudication costs the way
it has administrative agencies through the IOAA.
In response to commenters' concerns that they are unsure about how
the fees collected would be allocated, the
[[Page 82778]]
Department reiterates that the fees will be deposited into the IEFA
pursuant to section 286(m) of the Act (8 U.S.C. 1356(m)). 85 FR at
11867. The Department rejects any allegations that it would profit off
of any fees that it would collect pursuant to this rulemaking. All
adjudication fees that are designated in regulations are deposited in
the IEFA in the Treasury of the United States. Id. Although the fees
for EOIR applications and motions are paid to DHS, as noted by
commenters, DHS does not retain the fee amounts as an addition to DHS's
budget. Deposits into the IEFA ``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).
Except as noted in consideration of the public interest, the
Department included all operational costs in evaluating fee levels as
described in the NPRM. 85 FR at 11869. The Department notes that such
costs are associated with maintaining well-functioning immigration
proceedings that balance due process and efficiency interests, which is
of interest to both DHS and respondents, as well as the general public,
and that the Attorney General 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. INA 286(m), 8 U.S.C.
1356(m).
Commenters' suggestions regarding immigration detention and non-
EOIR programs are outside the scope of this rulemaking and, more
generally, outside the purview of the Department. ICE, which is
responsible in part for immigrant detention policies and facilities,
and U.S. Customs and Border Protection, of which Border Patrol agents
are a part, are components within DHS. See Operational and Support
Components, Department of Homeland Security, https://www.dhs.gov/operational-and-support-components (last updated Nov. 17, 2018). The
Department does not have authority over how DHS implements its
authority on these topics, and the budgetary choices made by DHS could
not in turn be altered to support EOIR's adjudications without
congressional action.
13. Policy Disagreements and Concerns
Comment: Commenters expressed multiple objections to the NPRM
related to policy decisions surrounding family separation and harm to
discrete populations.
Commenters opposed the NPRM, stating that it would separate
families.\43\ Commenters explained that aliens would be unable to
afford the proposed increased application fees for all family members.
Further, commenters were concerned that aliens unable to afford to
appeal immigration judge decisions would face deportations, thus
separating families of mixed legal status. Commenters feared that such
separation would subsequently result in children raised without both
parents, removal to countries where aliens have little to no ties,
family members burdened to assist separated family members, aliens
remaining in the United States needing and seeking public assistance,
furthered emotional and mental harm, and numerous other hardships
related to financial and physical wellbeing. For these reasons,
commenters asserted that the rule would destroy family unity, which
they alleged is a bedrock principle of immigration law.
---------------------------------------------------------------------------
\43\ This section responds to comments regarding family
separation, except in the context of statutory withholding of
removal and protection under the CAT. For comments concerning family
separation in that context, see Section II.C.8 of this preamble.
---------------------------------------------------------------------------
Commenters were also concerned that the rule would harm discrete
groups of aliens, specifically UACs, detainees, women, and victims of
trafficking and domestic violence, thereby inflicting or furthering
mental health consequences. One commenter explained that ``[a]ll
immigrants, by virtue of being away from their home country, are
considered vulnerable. For those who do not have the financial
resources to support themselves in a new country, poverty creates
additional vulnerability.'' Accordingly, commenters were concerned that
the rule would have significant consequences, in addition to its
effects on mental health, for specific populations.
For UACs, commenters emphasized they are by definition in an
already vulnerable state and typically lack financial resources, which
results in a significant need for pro bono counsel. Commenters stated
that because UACs would be unable to afford increased fees, the new
fees would be passed on to organizations and counsel and ultimately
result in fewer pro bono organizations and attorneys who will be both
willing and able to provide pro bono services to UACs. Further,
commenters alleged that, in their experience, fee waivers for UACs have
been consistently denied by DHS and are, therefore, an insufficient
remedy for this population. In this way, commenters opposed the NPRM as
a violation of UAC rights to access to the legal system and protection
from deportation, which commenters asserted are protected by domestic
and international law. Relatedly, one commenter opposed the rule based
on its effect on applicants for SIJ classification. Stating that those
children need ``unfettered access to BIA appellate review and motions
to reopen or reconsider,'' the commenter asserted that the NPRM's
increased fees will place an unnecessary burden on applicants for SIJ
classification to demonstrate financial inability in requesting a fee
waiver, which they have already demonstrated because ``SIJ[ ]
petitioners and recipients, by definition, have already lost the
financial and emotional support of one parent, if not both.''
With regard to detainees, commenters expressed the same concerns
regarding their vulnerability, financial hardship, and difficulty
securing representation. Commenters were concerned that detainees would
either lack the necessary money to pay fees, encounter difficulty
securing representation who could pay the increased fees, or be unable
to navigate the fee waiver process on their own based on lacking
resources in detention facilities.
Commenters also explained that the rule would negatively impact
women and girls because they typically earn less than their male
counterparts and are therefore less likely to be able to pay increased
fees. Further, commenters explained that women and girls are more
likely to have experienced gender-based domestic violence and related
harms, upon which their applications for relief are based.
Commenters alleged that victims of domestic violence and
transgender individuals are also significantly impacted by the rule
because they lack adequate finances, have increased vulnerabilities,
and may have suffered specific previous trauma.
Several commenters emphasized the consequences to trafficking
victims imposed by the rule. Commenters stated that trafficking victims
were especially vulnerable, given the harm imposed by their
traffickers. Commenters explained that because trafficking victims are
financially dependent on their traffickers, the increased fees will
likely preclude them from pursuing review before the BIA and the
Federal courts. In addition, commenters explained that trafficking
victims lack both the funds to
[[Page 82779]]
pay the increased fees and the documentation required to apply for a
fee waiver, and, further, that immigration judges oftentimes lack
understanding of the issues involved in human trafficking. Without
access to courts, commenters stated, trafficking victims would be
deprived of congressionally authorized forms of relief and may be
subject to further exploitation and abuse.
Response: The Department disagrees that the rule will separate
families and harm discrete populations.
First, with regard to family separation, the commenters' concerns
are entirely speculative and neglect the availability of a fee waiver.
The rule does not require removal of particular family members or
parents, nor does it preclude family members or parents from applying
for such forms of relief. Rather, the rule simply increases fees for
various applications for relief. See generally 85 FR 11866. The
Department disagrees with the commenters' reasoning because multiple
intervening factors must subsequently occur before family separation
would result, and commenters' assertions that each intervening event
will necessarily occur as alleged are speculative. Moreover, the merits
of a case determine whether a removal order is entered, and the rule
has no bearing on the relative merits of any applications filed in
immigration proceedings.
Nevertheless, the Department reiterates the availability of a fee
waiver for any alien, including children, parents, and family members,
who is unable to pay the assigned fee for the applications or motions
implicated by the rule. See 85 FR at 11868. Aliens may apply for a fee
waiver, upon which the immigration judge or the BIA may exercise
discretionary authority to waive the fee for the application. See 8 CFR
1003.8(a)(3), 1003.24(d), and 1103.7(c). The fee waiver process was
established to assist aliens who are unable to pay.
As noted in the NPRM, EOIR estimated that 36 percent of fee-related
filings did not result in a collection of fees due to fee waivers. Out
of 19,874 completed case appeals or motions decided by the Board in FY
2019, it granted, either tacitly or explicitly, approximately 5,499 fee
waivers and recorded no fee waiver requested for approximately 14,322
cases. Although the Board does not track fee waiver denials separately,
the data suggest that, at most, the Board denied 53 fee waiver requests
in FY 2019.\44\ Consequently, concerns about the inability of
respondents to obtain fee waivers are unfounded.\45\
---------------------------------------------------------------------------
\44\ Depending on the nature of the denial of the fee waiver
request (e.g., a denial based on the submission of an unsigned or
incomplete Fee Waiver Request Form, Form EOIR-26A), some fee waiver
requests that are initially denied may subsequently be granted if
the request is corrected.
\45\ Information on fee waiver grants and denials at the
immigration court level is not tracked by the Department.
Nevertheless, the denial of a fee waiver would lead to the
immigration judge denying an application or motion, which is then
appealable to the Board, including with a potential fee waiver
request for the appeal. Consequently, a respondent whose fee waiver
request is denied by an immigration judge has recourse to review
that decision as part of an appeal to the Board.
---------------------------------------------------------------------------
In addition, the Department reiterates that respondents may access
the List of Pro Bono Legal Service Providers, maintained by the
Department's Office of Legal Access Programs. See 8 CFR 1003.61. This
list contains contact information for pro bono legal service providers
and referral services that refer aliens to pro bono counsel. See List
of Pro Bono Legal Service Providers, Exec. Office for Immigration Rev.,
https://www.justice.gov/eoir/list-pro-bono-legal-service-providers
(last updated Apr. 14, 2020).
Second, the Department disagrees that the rule harms the specified
populations--UACs, detainees, women, transgender individuals, and
victims of trafficking and domestic violence.\46\ With the continued
availability of fee waivers, in addition to the List of Pro Bono Legal
Service Providers previously described, the rule provides a mechanism
for aliens who are unable to pay to seek a waiver of the fees.
Moreover, many of these populations have paid EOIR filing fees for
years--e.g., for motions to reopen or Forms EOIR-42A or EOIR-42B--with
no indication that the fees affect those populations any differently
than the alien population as a whole.
---------------------------------------------------------------------------
\46\ The Department reiterates that DHS has not assessed a $50
fee for asylum applications filed by a UAC in removal proceedings.
84 FR at 62319.
---------------------------------------------------------------------------
The Department disagrees that fee waivers are not a viable option.
Fee waiver determinations are based upon an immigration judge's
exercise of discretionary authority following a case-by-case analysis.
See 8 CFR 1003.8(a)(3), 1003.24(d), and 1103.7(c). Despite commenters'
anecdotal and unsubstantiated allegations that fee waivers for any
particular population are consistently denied, the Department has no
data to indicate such a practice.\47\ In regard to the effects cited by
commenters that the rule would have on various populations, such
effects are wholly speculative and depend most significantly on the
merits of the particular case.
---------------------------------------------------------------------------
\47\ Indeed, because there was until recently no fee for an
asylum application and because most other relevant applications for
the populations identified--e.g., nonimmigrant visas for victims of
human trafficking, special immigrant visas for certain categories of
juveniles, or immigrant visas for certain victims of domestic
violence--are adjudicated by DHS, it is implausible that EOIR has
``consistently denied'' fee waivers for these populations. Moreover,
to the extent that some commenters allege that all aliens are
``vulnerable,'' EOIR's fee waiver statistics noted above and
previously, 85 FR at 11869, do not indicate that it consistently
denies such waivers to all aliens.
---------------------------------------------------------------------------
14. Bad Motives
Comment: Some commenters who opposed the NPRM alleged that it was
based on anti-immigrant sentiment to discourage appeals, reduce
immigration judge authority, and curb access to courts by ``pricing
out'' certain aliens. Numerous commenters expressed different versions
of the sentiment that the NPRM was ``cruel,'' such as stating that the
rule was ``downright cruel,'' ``evidence[d] the agency's lack of
compassion,'' or constituted a ``cruelly excessive extra burden on
those already burdened by the bureaucratic processes involved in
immigration review.''
Other commenters opposed the NPRM for discriminating against non-
white, low-income people. One commenter described it as a ``race-based
wealth test.'' Some commenters alleged that the rule targets the poor
because it makes immigration available only to the wealthy who can
afford the increased fees. Commenters explained that low-income aliens
would be without redress, ``simply because they are poor.'' Commenters
tried to illustrate their position by citing a Federal Reserve report
stating that 40 percent of all Americans would struggle to pay an
unexpected $400 bill. See Report on the Economic Well-Being of U.S.
Households in 2018--May 2019, Federal Reserve, https://www.federalreserve.gov/publications/2019-economic-well-being-of-us-households-in-2018-dealing-with-unexpected-expenses.htm (last visited
Sept. 14, 2020). Commenters also asserted that many aliens' struggle to
retain representation in removal proceedings provided further evidence
that aliens would likely struggle to pay the higher fees, but did not
offer any evidence that aliens are unable to obtain counsel due to
prohibitive cost.
Response: The Department disagrees that the rule is cruel or
discriminatory, or that it targets the poor. The rule was not based on
ill-conceived or anti-immigrant motives, and the NPRM was not meant to
discourage appeals, reduce immigration judge authority, or curb access
to courts.
[[Page 82780]]
Generally, the NPRM proposed to amend EOIR regulations involving
fees. More specifically, and in accordance with EOIR's fee review, it
proposed to increase fees for EOIR applications, appeals, and motions;
update cross-references to DHS regulations regarding fees; and make a
technical change regarding FOIA requests. See generally 85 FR 11866.
The rule does not amend EOIR's regulations regarding fees established
by DHS for DHS forms filed or submitted in EOIR proceedings, nor does
the rule add new fees or affect an alien's ability to apply for a fee
waiver request. See id.
The changes in this final rule apply to any alien who files a
relevant form under the rule, unless the alien applies for and receives
a fee waiver. In this way, the rule does not discriminate, and it
targets no particular group. The rule applies equally to all aliens,
and fees charged are based on the application filed, contrary to
commenters' assertions that the rule is discriminatory.
Further, the rule does not target the ``poor'' or low-income
individuals in proceedings. As explained above, a fee waiver remains
available for individuals who are unable to pay the fee. 8 CFR
1003.8(a)(3), 1003.24(d). Accordingly, the Department disagrees that an
alien's access to the EOIR applications or motions for which EOIR
imposes a fee is conditioned in any way on a wealth test or other
financial status. With respect to the Federal Reserve report that was
cited by commenters regarding Americans' ability to pay unexpected
fees, the Department notes that publication of this rule provides
notice to the public such that individuals who have a valid claim for
relief will have time to prepare for filing any associated applications
or motions, including filing fees. Accordingly, such fees are not
necessarily unexpected. Additionally, the Department notes that the
above-cited report by the Federal Reserve states that 39 percent of
adults would have ``more difficulty'' paying an unexpected fee, with
``more difficulty'' defined as an individual being unable to pay with
cash or a cash equivalent at the time of the bill. Only 12 percent of
Americans would be unable to pay. Those aliens who fall into a similar
category of the 12 percent of Americans who would be unable to pay at
all might be eligible for a fee waiver pursuant to Sec. 1103.7(c).
The Department also disagrees with commenters' assertions that the
rule is ``cruel.'' As explained in the NPRM, EOIR's processing costs
currently exceed the assessed fees for EOIR applications for relief,
appeals, and motions, which have not changed since 1986. 85 FR at
11870. Accordingly, the rule updates EOIR's fees to more accurately
reflect the processing costs incurred by the agency in providing such
services. See id. The updated fees do not recover the full costs of the
services; rather, the updates more accurately reflect the costs for the
Department to provide such services. The Department recognizes that its
services are significant procedural tools that serve the public
interest and facilitate accurate administrative proceedings. Id.
(citing Ayuda II, 848 F.2d at 1301). In this way, the Department
preserves access to courts and the appeal process. Given this value,
the Department was also careful to update its fees in accordance with
the known, quantifiable costs of direct salaries, rather than variable
costs such as overhead and non-salary benefits, thereby balancing the
need to update fees with public policy interests. See generally 85 FR
11869. Consequently, the Department disagrees that the rulemaking
updating the fees is ``cruel.''
15. Other Suggestions
Comment: Commenters suggested that, rather than raising fees as
proposed by the NPRM, EOIR could transfer $8 million of unclaimed bond
money to EOIR pursuant to section 286(r) of the Act (8 U.S.C. 1356(r)).
Response: Given the limitations of section 286(r)(3) of the Act (8
U.S.C. 1356(r)(3)) identified by the commenters, the Department
reiterates its decision in the NPRM to raise fees in accordance with
the authority in section 286(m) of the Act (8 U.S.C. 1356(m)). See 85
FR at 11866, 11870. Subsection (r)(3) limits refunds to the agency in
the following scenarios: (1) Expenses incurred to collect breached
bonds and (2) expenses associated with the detention of aliens. INA
286(r), 8 U.S.C. 1356(r). Therefore, recovery of processing costs
through updating fees is proper and consistent with the agency's
statutory authority in section 286(m) of the Act (8 U.S.C. 1356(m))
rather than section 286(r) of the Act (8 U.S.C. 1356(r)).
Comment: Commenters suggested that the Department should clarify
that if an asylum seeker properly submits a fee waiver application that
is rejected by the immigration judge, the asylum seeker's application
would qualify for an extraordinary circumstances exception and the
asylum seeker would not be denied asylum based on the one-year filing
deadline. Commenters further explained that this clarification should
be made notwithstanding the language of the Immigration Court Practice
Manual, which states that ``[i]f a filing is submitted without a
required fee and the request for a fee waiver is denied, the filing
will be deemed defectively filed and may be rejected or excluded from
evidence.'' Immigration Court Practice Manual ch. 3.4(d), Office of the
Chief Immigration Judge, https://www.justice.gov/file/1250706/download
(last updated July 2, 2020).
Commenters urged the Department to adopt relaxed fee waiver rules
for particular individuals including but not limited to those who are:
Detained, UACs, deemed mentally incompetent, or subject to the MPP.
Commenters also recommended that such individuals be considered
presumptively eligible for a fee waiver.
Response: The Department declines to adopt suggestions regarding
fee waivers for asylum applications and the extraordinary circumstances
exception. EOIR did not propose altering its longstanding fee waiver
structure in the NPRM, and there is no supporting evidence that any
such revisions are necessary. The NPRM addressed neither EOIR's
longstanding regulations regarding fee waivers, 8 CFR 1103.7(c), nor
the provisions relating to extraordinary circumstance determinations, 8
CFR 1208.4(a)(5).\48\ The Department also declines to adopt relaxed fee
waiver rules for certain individuals, including commenters' suggestion
regarding presumptive eligibility. Fee waiver determinations are based
on an alien's financial situation, and an alien's presence or absence
in any asserted group says little about that particular alien's
financial status. For example, 87 percent of aliens who have an asylum
application pending before EOIR have representation, suggesting that
such aliens may possess financial resources--or the access to such
resources--that would not support providing presumptive fee waiver
eligibility for all such aliens. Similarly, many detained aliens are
lawful permanent residents who possess employment authorization and may
have significant financial resources, making a presumption that they
are entitled to a fee waiver inappropriate. Finally, these groups have
existed for years, and there is no evidence that the existing fee
waiver procedure, which is unchanged, is inadequate to address
individual circumstances in individual cases.
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\48\ The Department also notes that the one-year filing deadline
for asylum applications does not apply to UACs. 8 U.S.C.
1158(a)(2)(E).
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Comment: One commenter complained about the EOIR process for
accepting fees, which requires filers to pay through USCIS. The filer
[[Page 82781]]
recommended that EOIR accept fees electronically for all filings,
whether at the immigration courts or the BIA. Another commenter argued
that, rather than significantly increasing the fees, EOIR should focus
on making filing processing more efficient, thereby reducing the costs
needed to process filings requiring fees.
Response: The Department does not believe that any revisions to 8
CFR 1103.7(a) that would change the payment process are needed at this
time; subsequently, payments must continue to be made in accordance
with the regulation. Nevertheless, while electronic payment methods are
not currently available for EOIR fees, the Department continues to
modernize its technological capabilities. See Welcome to the EOIR
Courts & Appeals System (ECAS) Information Page, Exec. Office for
Immigration Rev., https://www.justice.gov/eoir/ECAS (last updated Sept.
8, 2020); see also EOIR Electronic Filing Pilot Program, 83 FR 29575
(June 25, 2018) (establishing a pilot electronic system for filing and
case management). As EOIR continues to move toward further electronic
system developments, the Department expects EOIR to also move toward
additional electronic payment capabilities, including reducing the need
to use DHS as a payment intermediary for the immigration courts.
Further, the Department continues to evaluate ways in which it may
increase the ``productivity and timeliness of case processing by
setting appropriate standards, streamlining procedures, and
implementing staff-generated recommendations.'' See About the Office:
Goals, Exec. Office for Immigration Rev., https://www.justice.gov/eoir/about-office (last updated Aug. 14, 2018). To that end, the Department
has already made various changes to improve efficiency at EOIR,\49\ and
the Department appreciates commenters' suggestions on improving
efficiency. Nevertheless, under statutory authority in section 286(m)
of the Act (8 U.S.C. 1356(m)), the Department finds that updating fees
properly allows the agency to recoup some of its processing costs, and
thus declines to change the regulatory language of the NPRM with the
publication of this final rule. See 85 FR at 11866, 11870.
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\49\ The Department has recently undertaken several initiatives
to improve efficiency. The Department has prioritized immigration
judge hiring, increasing the number of immigration judges from 245
in 2010 to 446 in the first quarter of 2020. See Exec. Office for
Immigration Rev. Adjudication Statistics: Immigration Judge (IJ)
Hiring, Oct. 2020, https://www.justice.gov/eoir/page/file/1242156/download. Further, the Department increased the number of appellate
immigration judges authorized to serve on the BIA from 17 to 21 in
2018. Expanding the Size of the Board of Immigration Appeals, 83 FR
8321 (Feb. 27, 2018). Recently, the Department announced that it has
further increased this number to 23. Expanding the Size of the Board
of Immigration Appeals, 85 FR 18105 (Apr. 1, 2020); EOIR Announces
Three New Appellate Immigration Judges, Exec. Office for Immigration
Rev., Aug. 7, 2020, https://www.justice.gov/eoir/page/file/1302796/download. EOIR has also taken steps to ensure that courtrooms are
utilized to the maximum extent during business hours. James R.
McHenry III, Policy Memorandum 19-11: No Dark Courtrooms, Exec.
Office for Immigration Rev., Mar. 29, 2019, https://www.justice.gov/eoir/file/1149286/download (memorializing policies to reduce and
minimize the impact of unused courtrooms and docket time).
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Comment: One organization argued that the main driver of increased
EOIR case receipts, which EOIR relies on as justification for these fee
increases, are the actions of DHS and EOIR itself. For example, the
organization explained that DHS has significantly increased its removal
operations, which results in more relief applications being filed once
aliens are placed into removal proceedings. Similarly, the organization
stated that DHS and EOIR policies designed to limit asylum eligibility
necessarily result in increases in applications for other forms of
potential relief. The organization argued that these limitations,
coupled with EOIR's case completion goals for immigration judges,
result in increased denials of relief applications and lead to the
increased filing of appeals and motions to reopen or reconsider.
Response: Although the Department acknowledges that new case
filings reached record levels in FY 2019, Executive Office for
Immigration Review Workload and Adjudication Statistics, New Cases and
Total Completions-Historical (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1139176/download (showing 545,729 new cases filed in FY
2019, the highest single-year total since EOIR was established in
1983), that number supports the Department's need to review and update
its fee structure regardless of the cause. Moreover, the Department
finds unpersuasive the commenter's tacit suggestion that if DHS
declined to enforce the laws against illegal immigration, then it would
file fewer cases with EOIR, which would, in turn, have fewer cases to
adjudicate and, thus, not need to raise fees. The Department recognizes
the commenter's policy disagreement with DHS's immigration enforcement
priorities, but that disagreement is beyond the scope of this
rulemaking. Moreover, DHS, not EOIR, is statutorily tasked by Congress
with ``[e]stablishing national immigration enforcement policies and
priorities,'' Homeland Security Act of 2002, Public Law 107-296, sec.
402(5), 116 Stat. 2135, 2178 (codified at 6 U.S.C. 202(5)), and it is
not appropriate for EOIR to review DHS's decision to initiate
proceedings to remove an alien from the United States. See, e.g.,
Matter of Quintero, 18 I&N Dec. 348, 350 (BIA 1982) (``Once deportation
proceedings have been initiated by the District Director, the
immigration judge may not review the wisdom of the District Director's
action''); see also Lopez-Telles v. INS, 564 F.2d 1302, 1304 (9th Cir.
1977) (per curiam) (``The immigration judge is not empowered to review
the wisdom of the [now DHS] in instituting the proceedings.'').
The Department disagrees with commenters' allegations that
Government policies necessarily result in increases in applications for
other forms of potential relief. Individuals choose to file motions,
appeals, and applications for relief or protection based on their own
individual circumstances, none of which affect the Department's
authority under section 286(m) of the Act (8 U.S.C. 1356(m)) to charge
fees. Moreover, all types of relief from removal have their own
eligibility criteria--e.g., cancellation of removal for certain
nonpermanent residents, INA 240A(b) (8 U.S.C. 1229b(b))--and there is
no statutory link between eligibility for asylum and eligibility for
some other form of relief. To the contrary, eligibility for most other
forms of relief from removal require either some significant period of
residence in the United States, e.g., INA 240A(b)(1)(A) (8 U.S.C.
1229b(b)(1)(A)) (requiring ten years of continuous physical presence in
the United States), or some established connection to an employer or a
relative who could petition on behalf of the alien, e.g., INA 203(a),
(b) (8 U.S.C. 1153(a), (b)) (preference allocation system for immigrant
visas based on familial relationships or employment). Consequently,
rules restricting asylum eligibility for recent or future arrivals to
the United States have little expected impact on applications for other
types of relief. In short, there is no basis for the commenters'
alleged link between Government asylum policies and increased
applications for other types of relief from removal.
Commenters also did not substantiate their assertions that
Government policies have led to increased appeals or motions to reopen
or reconsider, and their allegations rest on the implicit premise that
either immigration judges are unethical or incompetent--and, thus deny
otherwise meritorious claims that then require appeals or motions to
reopen--or aliens without meritorious claims should not be charged
[[Page 82782]]
appropriate fees for filing appeals or motions to reopen. Neither
assertion, however, is a persuasive reason for forgoing the fee review
and increases proposed by the Department. Again, the appropriateness of
filing a motion or appeal rests on the individual circumstances of the
alien, not on any particular policy of the Government.\50\
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\50\ The commenter provided no empirical substantiation for the
assertion that performance measures implemented for immigration
judges lead to increased denials of applications, nor is there any
logical basis to support such an assertion. The immigration judge
performance measure cited by commenters is based on completions, not
outcomes, and whether an immigration judge grants or denies relief
is wholly irrelevant to the measure. Rather, the commenter again
appears to be asserting that immigration judges are either unethical
or incompetent--and, thus, deny applications based on factors other
than the record and applicable law--but that assertion is unfounded
and not well taken by the Department. See United States v. Chem.
Found., Inc., 272 U.S. 1, 14-15 (1926) (``The presumption of
regularity supports the official acts of public officers, and, in
the absence of clear evidence to the contrary, courts presume that
they have properly discharged their official duties.'').
---------------------------------------------------------------------------
16. Miscellaneous
Comment: Commenters stated that the proposed fees in the NPRM were
unfair because of the disparity between EOIR's adjudications budget and
the DHS's enforcement budget. Specifically, commenters asserted that it
was unfair for the Department to pass the costs of adjudications on to
aliens where the United States was willing to ``pay billions of
dollars'' in enforcement operations.
Response: The Department disagrees that the fees are ``unfair.''
While the Department submits an annual budget request, Congress
ultimately determines agency budget allocations through the
appropriations process, and the Department does not have any control
over the funds appropriated to DHS, a separate agency, for enforcement
operations. At the same time, and independent of the appropriations
process, Congress has authorized the Department to charge fees for
immigration adjudication, and expressed its general sense that agencies
should impose fees in order to be as self-sustaining as possible, 31
U.S.C. 9701(a). INA 286(m), 8 U.S.C. 1356(m). The Department exercises
such statutory authority in updating the fees to more accurately
reflect EOIR's processing costs, and the Department finds that proper
exercise of statutory authority is not ``unfair.''
Comment: Regarding the Petition Clause of the First Amendment,
which protects the right of individuals to appeal to courts for dispute
resolution, see Borough of Duryea v. Guarnieri, 564 U.S. 379, 387
(2011), commenters explained that ``absent a uniform, accessible,
rational fee-waiver process that allows indigent individuals to
consistently have fees waived--and . . . there is no evidence that EOIR
has such a process--the proposed changes violate that constitutional
right.''
Response: The rule does not violate the Petition Clause of the
First Amendment, which secures the right ``to petition the Government
for a redress of grievances.'' U.S. Const. amdt. I. Commenters cited
Borough of Duryea, 564 U.S. 379, which states that ``the Petition
Clause protects the right of individuals to appeal to courts and other
forums established by the government for resolution of legal
disputes.'' Id. at 387. The contours of the Petition Clause have not
definitely been extended to include aliens \51\ implicated by the rule
at hand; however, even assuming that aliens possess rights under the
Petition Clause, the rule does not alter the longstanding ability of
aliens to access the immigration courts and to appeal a decision by an
immigration judge. INA 240(c)(5), 8 U.S.C. 1229a(c)(5); see also 8 CFR
1240.13(d). The rule only proposed changes to the fee that must be
submitted with such application. Further, although the Department
disagrees that the Petition Clause mandates a particular fee waiver
process, the rule does not disturb the longstanding regulatory
allowance for a fee waiver for aliens unable to afford the new fees.
This process applies uniformly to all aliens in proceedings, and
determinations whether to grant a fee waiver request are discretionary.
See 8 CFR 1003.8(a)(3), 1003.24(d), 1103.7(c). The Department believes
this process is rational and accessible and allows for individuals to
have fees waived upon a discretionary determination of inability to
pay.
---------------------------------------------------------------------------
\51\ Constitutional protections do not necessarily apply equally
to U.S. residents and non-residents alike. For example, the Court
has suggested that `` `the people' protected by the Fourth
Amendment, and by the First and Second Amendments, and to whom
rights and powers are reserved in the Ninth and Tenth Amendments,
refers to a class of persons who are part of a national community or
who have otherwise developed sufficient connection with this country
to be considered part of that community.'' United States v. Verdugo-
Urquidez, 494 U.S. 259, 265 (1990). Courts, however, have not
definitively determined the extent and application to aliens of the
Petition Clause of the First Amendment.
---------------------------------------------------------------------------
Comment: Commenters objected to the NPRM's justification that
raising fees would save taxpayer money. Specifically, commenters
asserted that only a small portion of money collected from income taxes
went toward EOIR's operations. Specifically, the commenters stated that
out of the average amount of money that each of the 143.3 million
taxpayers paid in 2017, which amounted to approximately $11,165, only
$2.79 went to fund EOIR, as compared with $108.86 per taxpayer to CBP
and $69.08 per taxpayer to ICE.
Response: The Department presented a number of factors underlying
the updated fees, including taxpayer subsidization. Based on
recalculations to exclude DHS-only motions, the chart provided in the
NPRM is updated below.
[[Page 82783]]
[GRAPHIC] [TIFF OMITTED] TR18DE20.022
To reiterate, in 2018 alone, U.S. taxpayers subsidized fee-based
forms and motions by at least $41.5 million. 85 FR at 11869. As
previously mentioned, the congressional appropriations process
determines the amount of funding each agency receives. Commenters may
disagree with the amount of money EOIR receives in comparison to other
agencies, but beyond submitting a budget request, EOIR plays no role in
determining the amount of funding it ultimately receives or the overall
allocation of funding among agencies. Moreover, the Department
maintains that consideration of taxpayer subsidization is one of many
significant factors underlying its decision to update fees. Even if the
cost per taxpayer were minimal, $41,570,053 in total is not an
insignificant amount, and the Department disagrees with subsidizing
fee-based forms to that extent using taxpayer dollars.
---------------------------------------------------------------------------
\52\ Approximately 36 percent of these fees were not received
due to fee waiver approvals. The impact of the waivers themselves is
to provide a Government subsidy because the Government absorbs
required costs on behalf of an individual who is subject to the fee.
The taxpayer subsidization, therefore, is greater than the number
provided in this chart.
\53\ These numbers include both motions to reopen and motions to
reconsider filed at the Board level.
---------------------------------------------------------------------------
Comment: Commenters objected to the Department's description of its
interests as purportedly being identical to those of DHS. Commenters
explained that ``EOIR itself should be representing the equally
important `Federal interest' of fairness and justice for all parties
who appear before the immigration court and BIA.'' Further, commenters
asserted that the Department did not conduct an independent analysis of
its obligations in setting fees but instead simply adopted the analysis
from USCIS.
Response: The Department disagrees with commenters that it ever
purported to have identical interests to DHS when DHS is a party before
the agency in immigration proceedings. At issue is the following
statement from the NPRM: ``As DHS is the party opposite the alien in
these proceedings, EOIR's hearings provide value to both aliens seeking
relief and the Federal interests that DHS represents.'' 85 FR at 11870.
Through that statement, the Department sought to explain that revenue
from updated fees would advance the public interest of ensuring
accurate administrative proceedings, which in turn benefits both the
alien and DHS. EOIR's interests are not identical to DHS's interests in
immigration proceedings. EOIR administers the Nation's immigration laws
through adjudication of removal cases and claims to defend against such
removal, while DHS represents the Government's interest in enforcing
such laws. In this way, EOIR provides fair and just proceedings for all
parties before the agency, and the updated fees ensure that EOIR
continues to provide such services. See 85 FR at 11870.
The Department also disagrees with commenters' allegations that the
agency failed to conduct an independent analysis from USCIS. Both
agencies exercise authority to set fees pursuant to section 286(m) of
the Act (8 U.S.C. 1356(m)). Further, both agencies follow non-statutory
guidance from OMB in exercising such authority. Accordingly, the
analysis contained in EOIR's NPRM (85 FR 11866) is reasonably similar
to the analysis contained in USCIS's NPRM (84 FR 62280).
Notwithstanding this same statutory conferral of authority, the
Department reiterates that it conducts its own independent analyses
throughout its rulemaking
[[Page 82784]]
activities as a separate agency from DHS.\54\
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\54\ However, as stated elsewhere, the Department's analysis and
fee-setting decisions only apply to those applications, appeals, or
motions controlled by the Department and not to forms that are
maintained by DHS, such as the Form I-589. Accordingly, the
Department does not conduct analyses for fees set by DHS for DHS
forms.
---------------------------------------------------------------------------
Comment: Commenters compared the NPRM to policies under prior
administrations that established a streamlined appeal system whereby
the BIA could affirm immigration judge decisions without opinion.
Commenters asserted that under such procedures, litigants did not
receive justice at the BIA and the number of Federal appeals increased.
By contrast, commenters stated, when the BIA rescinded a number of the
streamlining policies, Federal appeals dropped. The commenters opined
that the NPRM would similarly burden the Federal courts by creating a
new source of appeals: Denial of the fee waiver and subsequent
dismissal of the appeal for lack of timely filing. The commenters
opined that such appeals would likely be remanded to the BIA,
increasing the backlog there. The commenters asserted that any money
taken in by the fees paid under the NPRM would likely be expended by
the Federal courts and Department attorneys ``in processing and likely
remanding hundreds or thousands of cases in which fee waiver requests
have been wrongly denied.''
Response: The Department disagrees with commenters' assertions that
the increase in fees would result in an undue burden on Federal courts.
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 before the
BIA. See 8 CFR 1003.8(a)(3); 85 FR at 11871. An alien who is unable to
pay for the increased fee of an appeal would file the EOIR-26A, Fee
Waiver Request. The availability of the fee waiver ensures aliens'
continued access to the BIA, and in turn the Federal courts.
Moreover, the Department is unable to respond to commenters'
assertions that there will be an increase in appeals of denied fee
waivers because these concerns are merely speculative and beyond the
scope of this rulemaking. Nothing in this rule affects the adjudication
process of fee waiver applications and therefore does not implicate the
need for additional appeals of fee waiver denials.
Comment: Commenters also asserted that the proposed rule will
operate as an unlawful tax for individuals who rely on the immigration
court system for relief. Commenters cited Article 29 of the Refugee
Convention, which bars imposing on refugees ``duties, charges or taxes,
of any description whatsoever, other or higher than those which are or
may be levied on [signatories'] nationals in similar situations.'' One
commenter asserted that the proposed rule violated Article 25 of the
Convention because although ``fees may be charged for the services
mentioned [t]herein,'' those ``fees shall be moderate and commensurate
with those charged to nationals for similar services.''
Response: As previously explained in Section II.C.8 of this
preamble, the rule does not violate Article 29 of the Refugee
Convention. That reasoning also applies to Article 25's requirement
that certain fees charged to refugees must be ``moderate and
commensurate with those charged to nationals for similar services.''
Examples of such services are the Form I-130, Petition for Alien
Relative, $560, and Form I-360, Petition for Amerasian, Widow(er), or
Special Immigrant, $450. See 8 CFR 106.2(a)(6), (16). Accordingly, the
Department finds that fees charged to refugees under the rule are
reasonably commensurate with fees charged to nationals, such that the
rule upholds United States treaty obligations.
III. Provisions of the Final Rule
The Department has considered and responded to the comments
received in response to the proposed rule. In accordance with the
authorities discussed above in Section I.A of this preamble, the
Department is now issuing this final rule to finalize the NPRM. The
final rule adopts the fee amounts set out in the proposed rule as final
for the reasons discussed above in Section II of this preamble in
responses to the comments received. As a result, the fees for those
forms, motions, and applications for which EOIR charges a fee will be
as follows:
[GRAPHIC] [TIFF OMITTED] TR18DE20.023
Applying the same 36 percent fee waiver rate \55\ that EOIR
previously estimated, see 85 FR at 11869 n.11,\56\ these new fees would
be expected to result in the fee revenues for Fiscal Year 2021 that are
reflected in the table below.\57\ The table also presents the
incremental fee revenue that would be
[[Page 82785]]
paid \58\ by applicants or by others assisting the applicants,
including family, friends, or social agencies. Aggregating this
incremental fee revenue across fee types gives an estimate of the
transfer effects of the rule, which are estimated to be about $45.2
million in FY 2021. This incremental fee revenue is estimated based on
an assumption that the fee increases will not lead to a reduction in
applications. The incremental fee revenue also represents an estimate
of the expected transfer effects of the rule from applicants, and
individuals or groups assisting those applicants, to the Federal
Government. The table also provides the actual cost to the Government
of providing the covered services based on the Government's activity-
based costing study for these services.
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\55\ The fee waiver rate was not applied to the EOIR-29 or the
EOIR-45 due to the low number of filings projected. For the other
forms, the impact of the waivers themselves is to provide a
Government subsidy because the Government absorbs required costs on
behalf of an individual who is subject to the fee. The taxpayer
subsidization, therefore, is greater than contemplated by the
incremental fee revenue alone.
\56\ The Department notes that this rate may be low as more
aliens may file for fee waivers and, thus, more waivers may be
granted following the implementation of this rule. However, EOIR is
unable to more specifically predict future fee waiver grant rates
because each fee waiver request is an individual adjudication and
because EOIR does not have data on the average income of aliens who
file these forms and motions today or other data that would be
required to increase this prediction's accuracy.
\57\ The Department notes that FY 2021 began prior to the
publication of this final rule. The projections for FY 2021 presumed
that the new fees would be in effect for the entire fiscal year.
\58\ Incremental fee revenue was calculated by applying the FY
2021 projected filings to former and new fee amounts, including the
36% of forms with approved fee waivers.
[GRAPHIC] [TIFF OMITTED] TR18DE20.024
In addition, this final rule, like the NPRM, includes regulatory
cross-reference changes and corrections for the reasons discussed above
in Section II. However, because the USCIS final rule is currently
enjoined as noted above, this final rule revises EOIR's cross-
references to direct the reader to both 8 CFR 103.7 and 8 CFR part 106
in order to prevent confusion and ensure consistency regardless of how
the litigation over that rule is resolved. In addition, this final rule
includes an additional correction to the cross-reference to 8 CFR
103.7(c) in 8 CFR 1245.13(g) that was inadvertently not included in the
similar changes set out in the NPRM.
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\59\ The cost to the Government is the product of the projected
number of filings and the cost calculated in the activity-based
costing study.
\60\ FY 2021 projections were calculated applying the average
percent change over ten fiscal years to FY 2020 estimated receipts.
EOIR calculated the FY 2020 estmated receipts as follows. First,
EOIR added the first three quarters of FY 2020 receipts and divided
by three to get an estimate for the last quarter of FY 2020. Second,
EOIR added together the first three quarters along with the
estimated last quarter to get the total. Next, the agency calculated
the percent increase or decrease between each fiscal year and the
average percent change.
\61\ Projections result in zero filings of Form EOIR-29. Each
filing would cost the Government $704.81 based on the activity-based
costing study.
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IV. Regulatory Requirements
A. Regulatory Flexibility Act
The Department has reviewed this regulation in accordance with the
Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) (``RFA''), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121, tit. II, 110 Stat. 847, and has determined
that this rule would not have a significant economic impact on a
substantial number of small entities. The rule would not regulate
``small entities'' as that term is defined in 5 U.S.C. 601(6). Only
individuals, rather than entities, are responsible for paying the fees
affected by this proposed rule. This position reflects the Department's
consistent view for decades regarding fees in EOIR proceedings. See,
e.g., Powers and Duties of Service Officers; Availability of Service
Records, 51 FR 2895 (Jan. 22, 1986) (proposed rule for changes to
EOIR's fee schedule for appeals and motions) (``In accordance with 5
U.S.C. 605(b), the Attorney General certifies that the rule will not
have a significant economic impact on a substantial number of small
entities.''); 51 FR at 39994 (final rule adopting in pertinent part the
proposed changes to the fee schedule) (maintaining the position that
changes to the fee schedule will not have a significant impact on a
substantial number of small entities). The Department is unaware of any
challenge to this position and finds no reason to depart from that
well-established position. The rule applies to aliens in immigration
proceedings, who are individuals, not entities. See 5 U.S.C. 601(6).
The rule does not limit in any way the ability of practitioners to
accept cases, manage dockets, or assess fees. Indeed, nothing in the
rule in any fashion regulates the legal representatives of such
individuals or the organizations by which those representatives are
employed, and the Department is unaware of cases in which the RFA's
requirements have been applied to legal representatives of entities
subject to its provisions, in addition to or in lieu of the entities
themselves. See 5 U.S.C. 603(b)(3) (requiring that an RFA analysis
include a description of and, if feasible, an estimate of the number of
``small entities'' to which the rule ``will apply''). To the contrary,
case law indicates that indirect effects on entities not regulated by a
proposed rule are not subject to an RFA analysis. See, e.g., Mid-Tex
Elec. Coop., Inc. v. FERC, 773 F.2d 327, 342-43 (D.C. Cir. 1985)
(``[W]e conclude that an agency may properly certify that no regulatory
flexibility analysis is necessary when it determines that the rule will
not have a significant
[[Page 82786]]
economic impact on a substantial number of small entities that are
subject to the requirements of the rule. . . . Congress did not intend
to require that every agency consider every indirect effect that any
regulation might have on small businesses in any stratum of the
national economy. That is a very broad and ambitious agenda, and we
think that Congress is unlikely to have embarked on such a course
without airing the matter.''); Cement Kiln Recycling Coal. v. EPA, 255
F.3d 855, 869 (D.C. Cir. 2001) (per curiam) (``Contrary to what
[petitioner] supposes, application of the RFA does turn on whether
particular entities are the `targets' of a given rule. The statute
requires that the agency conduct the relevant analysis or certify `no
impact' for those small businesses that are `subject to' the
regulation, that is, those to which the regulation `will apply.' . . .
The rule will doubtless have economic impacts in many ectors of the
economy. But to require an agency to assess the impact on all of the
nation's small businesses possibly affected by a rule would be to
convert every rulemaking process into a massive exercise in economic
modeling, an approach we have already rejected.'' (citing Mid-Tex, 773
F.2d at 343)); see also White Eagle Coop. Ass'n v. Conner, 553 F.3d
467, 480 (7th Cir. 2009) (``The rule that emerges from this line of
cases is that small entities directly regulated by the proposed
[rulemaking]--whose conduct is circumscribed or mandated--may bring a
challenge to the RFA analysis or certification of an agency. . . .
However, when the regulation reaches small entities only indirectly,
they do not have standing to bring an RFA challenge.'').
Further, the Department has consistently maintained this position
regarding immigration regulations aimed at aliens, rather than
practitioners who represent aliens, including much broader and more
sweeping rulemakings. See, e.g., Inspection and Expedited Removal of
Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 FR 444, 453 (Jan. 3, 1997)
(certifying that the rule would not have a significant impact on a
substantial number of small entities because it ``affects only Federal
government operations'' by revising the procedures for the
``examination, detention, and removal of aliens''). That conclusion was
reiterated in the interim rule, 62 FR 10312, 10328 (Mar. 6, 1997),
which was adopted with no noted challenge or dispute. This final rule
is similar, in that it, too, affects only the operations of the Federal
Government by amending certain discrete categories of fees related to
immigration forms filed by aliens. The Department thus believes that
the experience of implementing the prior rules cited above supports its
conclusion that there is no evidence that this final rule will have a
significant impact on small entities as contemplated by the RFA.
B. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
C. Congressional Review Act
This rule is not a major rule as defined by the Congressional
Review Act. 5 U.S.C. 804(2). This rule would not result in an annual
effect on the economy of $100 million or more; a major increase in
costs or prices for consumers, individual industries, government
agencies, or geographic regions; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
D. Executive Orders 12866, 13563, and 13771
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of using the best
available methods to quantify costs and benefits, reducing costs,
harmonizing rules, and promoting flexibility. Executive Order 13771
directs agencies to reduce regulation and control regulatory costs and,
for all qualifying regulations, to identify at least two existing
regulations for elimination.
This rule has been drafted in accordance with the principles of
Executive Order 12866, section 1(b), and Executive Order 13563. The
Department considers this rule to be a ``significant regulatory
action'' under section 3(f)(3) of Executive Order 12866 because it
materially alters user fees, but it is not an economically significant
action because the annual effect on the economy is less than $100
million annually. Accordingly, this rule has been submitted to OMB for
review. This rule imposes transfer payments between the public and the
Government and does not impose any new cost burdens that will need to
be offset under Executive Order 13771. Thus, this rule is not subject
to the requirements of Executive Order 13771.
In the spring of 2018, 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). EOIR's methodology for conducting this comprehensive study
was as follows:
First, in the survey-data phase, EOIR gathered survey data and
consulted with OCIJ and BIA experts to determine the appropriate staff
positions involved and the average time required to process and
adjudicate each fee-based form or motion. EOIR also researched data
from OPM and the GSA to determine the average salary rates for the
applicable staff positions, including both Federal employees and EOIR
contractors.
Second, in the process-mapping phase, EOIR developed step-by-step
process maps, with assigned times and staff positions, for each fee-
based form or motion processed in the OCIJ and the BIA. OCIJ and BIA
experts validated any assumptions made during the process-mapping
phase.
Third, in the activity-based-costing phase, EOIR allocated the
salary costs from the GSA and OPM data to each step in the process,
based on the amount of time the step takes, the average salary of the
responsible staff, and the percentage of total cases in which the step
occurs. As discussed above, EOIR did not include other costs, such as
the overhead costs for EOIR space that is used for processing
applications, fringe benefits received by EOIR staff and contractors,
interpreter costs, Federal Records Center costs, non-EOIR government
agency costs, or the costs and time to process any non-fee-based
application that is submitted in conjunction with a motion to reopen or
reconsider. See 8 CFR 1003.23(b)(3) (``Any motion to reopen for the
purpose of acting on an application for relief must be accompanied by
the appropriate application for relief and all supporting
documents.''). These costs were not included in the analysis because
they represent costs that are incurred regardless of processing fee-
based motions or forms or because they
[[Page 82787]]
are not applicable in every adjudication of a fee-based motion or form,
and DOJ did not employ a methodology to assign such costs equitably to
various motion or form types.
EOIR used this methodology to calculate an estimated cost for
processing each form or motion for which EOIR levies a fee. The results
of the activity-based-costing analysis are as follows:
[GRAPHIC] [TIFF OMITTED] TR18DE20.025
[[Page 82788]]
[GRAPHIC] [TIFF OMITTED] TR18DE20.026
[[Page 82789]]
[GRAPHIC] [TIFF OMITTED] TR18DE20.027
[[Page 82790]]
[GRAPHIC] [TIFF OMITTED] TR18DE20.028
[[Page 82791]]
[GRAPHIC] [TIFF OMITTED] TR18DE20.029
As discussed above, these estimated costs calculated from the study
demonstrate that EOIR's processing costs exceed the currently assessed
fees for every fee-based form or motion processed byy EOIR.
Accordingly, this rule raises the fees for these filiings.
[GRAPHIC] [TIFF OMITTED] TR18DE20.032
To determine the economic impact of this rule, EOIR compared
current fee collection levels and the fee collections that would have
been generated by the proposed fees, as applied to filings from FY
2018.\62\ In FY 2018, EOIR received more than 90,000 applications,
appeals, and motions for which EOIR levies a fee. If fees had been
collected for each of those filings at the current fee levels, EOIR
would have collected $9.6 million in revenue. If, instead, the
aforementioned FY 2018 filings had been charged the fees established by
this rule, fee revenue for that fiscal year would have been
approximately $51.1 million. In sum, the rule will cause applicants to
pay approximately $41.4 million in fee revenue beyond that which would
be expected if the filing fees were not changed. Comparing current fee
collection levels with fee collections that would have been generated
by the new fees in inflation-
[[Page 82792]]
adjusted dollars \63\ shows that the total revenue would have been
approximately $22 million, or a difference of approximately $12.4
million. EOIR, however, does not require a fee in every circumstance
when a party files one of the affected forms or motions. Instead, there
are certain circumstances when the normal filing fee does not apply,
and this rule does not impact immigration judges' and the BIA's
discretionary authority to waive a fee upon a showing that the filing
party is unable to pay. See 8 CFR 1003.8(a)(2)-(3), 1003.24(b)(2), (d),
1103.7(c). Therefore, the actual fee collection that results from this
rule may in fact be lower than stated above, which would result in a
lower cost to applicants than the collection projections outlined in
this cost analysis.
---------------------------------------------------------------------------
\62\ Data documenting the FY 2018 filings were obtained from the
EOIR Database on July 16, 2020, applying a dataset from Aug. 7,
2019.
\63\ This calculation was made by applying the consumer price
index from January 1986 (109.6) to the real dollars calculation as
compared to January 2019 (251.7). Historical Consumer Price Index
for All Urban Consumers, Bureau of Labor Statistics, https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202009.pdf (last accessed Nov. 12, 2020).
---------------------------------------------------------------------------
Given the continued availability of fee waivers, the Department
does not believe that these fees will have a material impact on the
volume of filings received annually. Indeed, because these forms and
applications are connected with immigration benefits and applications
and must be filed as a precursor to an alien obtaining the desired
relief or processes--which may determine whether the alien is able to
remain lawfully in the United States or is removed to a country to
which he or she has repeatedly demonstrated a desire not to return--the
Department expects the demand for filing these forms and motions to be
relatively inelastic, particularly due to the relatively modest nature
of the increases (i.e. less than $1000), their comparative similarity
with fees imposed by USCIS, and the ability of many aliens to obtain
access to financial resources which may be used to pay for them. Thus,
the Department expects that aliens will continue to file the forms at
roughly the same or similar rates as today following this rule's
implementation.
Ultimately, EOIR estimates the following filing numbers for these
forms and motions in FY 2021:\64\
---------------------------------------------------------------------------
\64\ FY 2021 projections were calculated applying the average
percent change over ten fiscal years to FY2020 estimated receipts.
EOIR first calculated the FY 2020 estimated receipts by adding the
first three quarters of FY2020 receipts, divided by three, to
itself. Next, the agency calculated the percent increase or decrease
between each fiscal year and the average percent change.
\65\ These numbers include both motions to reopen and motions to
reconsider filed at the immigration court level.
\66\ These numbers include both motions to reopen and motions to
reconsider filed at the BIA level.
[GRAPHIC] [TIFF OMITTED] TR18DE20.030
Transfers to EOIR from the actual revenues flow from the individual
applicants to the IEFA administered by DHS and then to EOIR in a fixed
amount regardless of the decreased subsidy to filing aliens.\67\ Though
the fees may seem high as compared to the current fees, the agency has
not increased its fees since 1986. Taken over the 33-year timespan from
1986 to 2019, the fee increases represent compound annual growth rates
ranging from 0.84 percent to 6.84 percent. While EOIR recognizes that
the new fees will be more burdensome, individuals may still apply for a
fee waiver for these fees pursuant to 8 CFR 1003.8(a)(3), 1003.24(d),
1103.7(c).
---------------------------------------------------------------------------
\67\ As also discussed above, the Department did not include in
the NPRM projected costs related to adjudication of fee waivers
resulting from the rule, nor did it include overhead costs, non-
salary benefits, and costs associated with filing corollary
documents that may be submitted with the application, appeal, or
motion to which a fee applies. The inclusion of such costs would
have likely led to greater fee increases and, thus, imposed greater
costs on aliens.
[GRAPHIC] [TIFF OMITTED] TR18DE20.031
[[Page 82793]]
The Department determined that it is appropriate to move forward
with full implementation of these new fees with one effective date. The
Department considered commenters' suggestions, discussed above, that
the Department should phase in the new fees. However, the Department
again notes the significant length of time since the Department has
updated the fees for these forms, applications, and motions. In
addition, members of the public, including aliens in immigration
proceedings who would be required to pay the new fee amounts if they do
not seek or are not granted a fee waiver, have been on notice of the
possible new fee amounts since the proposed rule's publication in
February 2020. And as stated above, the Department does not believe a
phased implementation is needed to provide individuals additional time
to prepare for the new fees as fee waivers remain available by
regulation for individuals who are unable to afford the new fee amount.
See 8 CFR 1003.8(a)(3), 1003.24(d), 1103.7(c). Further, the Department
notes that the closest comparable agency, USCIS, generally does not
phase in fee increases even when they may be perceived as significant,
and the Department is unaware of any difficulties that practice has
created.
Finally, as the Department discussed, the increase in fees may
constitute an additional cost to an individual alien in the amount of
the relevant increase, depending on the particular circumstances of
each individual alien.\68\ It is also possible--and perhaps even
probable--that the increased fees may lead additional aliens to seek a
fee waiver than would without this rule, though the precise size of
that group of aliens, though likely small for the reasons given, supra,
is not estimated. Otherwise, the rule will impose minimal additional
costs to the Government, as the Department has adjudicated fee waivers
for many decades, and both Board members and immigration judges are
experienced in adjudicating such requests.
---------------------------------------------------------------------------
\68\ As also discussed above, the Department did not include in
the NPRM projected costs related to adjudication of fee waivers
resulting from the rule, nor did it include overhead costs, non-
salary benefits, and costs associated with filing corollary
documents that may be submitted with the application, appeal, or
motion to which a fee applies. The inclusion of such costs would
have likely led to greater fee increases and, thus, imposed a
greater costs on aliens.
---------------------------------------------------------------------------
E. Executive Order 13132: Federalism
This rule will not have substantial direct effects on the States,
on the relationship between the Federal Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule would not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988: Criminal Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
This rule does not propose new ``collection[s] of information'' as
that term is defined under the Paperwork Reduction Act of 1995, Public
Law 104-13, 109 Stat. 163 (codified at 44 U.S.C. 3501-3521) (``PRA''),
and its implementing regulations, 5 CFR part 1320. There are no
substantive changes to the forms as a result of this rulemaking; the
only changes being proposed are revisions to the fee amounts for the
existing forms for which EOIR sets the fees. The Department will be
coordinating separately regarding updates to the existing forms under
the PRA.
List of Subjects
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
Services, Organization and functions (Government agencies).
8 CFR Part 1103
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 1208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1216
Administrative practice and procedure, Aliens.
8 CFR Part 1240
Administrative practice and procedure, Aliens.
8 CFR Part 1244
Administrative practice and procedure, Immigration.
8 CFR Part 1245
Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, for the reasons set forth in the preamble, the
Attorney General amends title 8, chapter V of the Code of Federal
Regulations as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
1. The authority for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
Sec. 1003.8 [Amended]
0
2. Section 1003.8 is amended by removing the citation ``8 CFR
103.7(a)'' and adding, in its place, the citation ``Sec. 1103.7(b)''
in paragraph (a)(4)(ii).
Sec. 1003.24 [Amended]
0
3. Section 1003.24 is amended by removing the citation ``8 CFR 103.7''
and adding, in its place, the words ``8 CFR 103.7 and 8 CFR part 106''
in paragraphs (a) and (c)(1).
PART 1103--APPEALS, RECORDS, AND FEES
0
4. The authority for part 1103 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 28
U.S.C. 509, 510.
0
5. Section 1103.7 is amended by:
0
a. Removing the citation ``8 CFR 103.7(a)(1)'' and adding, in its
place, the citation ``8 CFR 103.7'' in paragraph (a)(3);
0
b. Removing the citation ``8 CFR 103.7(a)(2)'' and adding, in its
place, the words ``8 CFR 103.7 and 8 CFR part 106'' in paragraph
(a)(3);
0
c. Removing the citation ``8 CFR 103.7'' and adding, in its place, the
words ``8 CFR 103.7 and 8 CFR part 106'' in paragraph (b)(4)(ii); and
0
d. Revising paragraphs (b)(1) and (2), (b)(4), and (d).
The revisions read as follows:
Sec. 1103.7 Fees.
* * * * *
(b) Amounts of Fees--(1) Appeals. For filing an appeal to the Board
of Immigration Appeals, when a fee is required pursuant to 8 CFR
1003.8, as follows:
Form EOIR-26. For filing an appeal from a decision of an
immigration judge--$975.
Form EOIR-29. For filing an appeal from a decision of an officer of
the Department of Homeland Security--$705.
[[Page 82794]]
Form EOIR-45. For filing an appeal from a decision of an
adjudicating official in a practitioner disciplinary case--$675.
(2) Motions. For filing a motion to reopen or a motion to
reconsider, when a fee is required pursuant to 8 CFR 1003.8 or 1003.24,
as follows:
Motion to reopen or motion to reconsider before the immigration
court--$145.
Motion to reopen or motion to reconsider before the Board of
Immigration Appeals--$895.
* * * * *
(4) Applications for Relief--(i) Forms published by the Executive
Office for Immigration Review. Fees for applications for relief shall
be paid in accordance with 8 CFR 1003.8(b) and 1003.24(c) as follows:
Form EOIR-40. Application for Suspension of Deportation--$305.
Form EOIR-42A. Application for Cancellation of Removal for Certain
Permanent Residents--$305.
Form EOIR-42B. Application for Cancellation of Removal and
Adjustment of Status for Certain Nonpermanent Residents--$360.
(ii) Forms published by the Department of Homeland Security. The
fees for applications published by the Department of Homeland Security
and used in immigration proceedings are governed by 8 CFR 103.7 and 8
CFR part 106. Consistent with 8 CFR 106.2, no fee shall apply to 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.
* * * * *
(d) Requests for records under the Freedom of Information Act. Fees
for production or disclosure of records under 5 U.S.C. 552 may be
waived or reduced in accordance with 28 CFR 16.10.
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
6. The authority for part 1208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229.
Sec. 1208.7 [Amended]
0
7. Section 1208.7 is amended by removing the words ``Sec. 103.7(c) of
this chapter'' and adding, in their place, the citation ``8 CFR 103.7
and 8 CFR part 106'' in paragraph (c) introductory text.
PART 1216--CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS
0
8. The authority for part 1216 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8
CFR part 2.
Sec. 1216.4 [Amended]
0
9. Section 1216.4 is amended by removing the words ``Sec. 103.7(b) of
8 CFR chapter I'' and adding, in their place, the citation ``8 CFR
103.7 and 8 CFR part 106'' in paragraph (a)(1).
Sec. 1216.5 [Amended]
0
10. Section 1216.5 is amended by removing the words ``Sec. 103.7(b) of
8 CFR chapter I'' and adding, in their place, the citation ``8 CFR
103.7 and 8 CFR part 106'' in paragraph (b).
Sec. 1216.6 [Amended]
0
11. Section 1216.6 is amended by removing the words ``Sec. 103.7(b)(1)
of 8 CFR chapter I'' and adding, in their place, the citation ``8 CFR
103.7 and 8 CFR part 106'' in paragraph (a)(1).
PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
0
12. The authority for part 1240 continues to read as follows:
Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226,
1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L.
105-277 (112 Stat. 2681).
Sec. 1240.11 [Amended]
0
13. Section 1240.11 is amended by:
0
a. Removing the words ``Sec. 103.7(b)(1) of 8 CFR chapter I'' and
adding, in their place, the words ``Sec. 1103.7(b)(1) of this
chapter'' in paragraph (f); and
0
b. Removing the citation ``8 CFR 103.7(b)(1)'' and adding, in its
place, the words ``Sec. 1103.7(b)(4) of this chapter'' in paragraph
(f).
Sec. 1240.20 [Amended]
0
14. Section 1240.20 is amended by removing the words ``Sec. 103.7(b)
of 8 CFR chapter I'' and adding, in their place, the words ``Sec.
1103.7(b) of this chapter'' in paragraph (a).
PART 1244--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED
STATES
0
15. The authority for part 1244 continues to read as follows:
Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.
Sec. 1244.6 [Amended]
0
16. Section 1244.6 is amended by removing the words ``Sec. 103.7 of
this chapter'' and adding, in their place, the citation ``8 CFR 103.7
and 8 CFR part 106''.
Sec. 1244.20 [Amended]
0
17. Section 1244.20 is amended by removing the citation ``8 CFR
103.7(b)'' and adding, in its place, the citation ``8 CFR 103.7 and 8
CFR part 106'' in paragraph (a).
PART 1245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
0
18. The authority for part 1245 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; section 202, Public
Law 105-100, 111 Stat. 2160, 2193; section 902, Public Law 105-277,
112 Stat. 2681; Title VII of Public Law 110-229.
Sec. 1245.7 [Amended]
0
19. Section 1245.7 is amended by removing the words ``Sec. 103.7 of
this chapter'' and adding, in their place, the words ``8 CFR 103.7 and
8 CFR 103.17'' in paragraph (a).
Sec. 1245.10 [Amended]
0
20. Section 1245.10 is amended by removing the words ``Sec.
103.7(b)(1) of this chapter'' and adding, in their place, the citation
``8 CFR 103.7 and 8 CFR part 106'' in paragraph (c) introductory text.
Sec. 1245.13 [Amended]
0
21. Section 1245.13 is amended by:
0
a. Removing the words ``Sec. 103.7(b)(1) of 8 CFR chapter I'' and
adding, in their place, the citation ``8 CFR 103.7 and 8 CFR part 106''
in paragraphs (e)(1), (g), (j)(1), and (k)(1);
0
b. Removing the words ``Sec. 103.7(b)(1) of 8 CFR chapter I'' and
adding, in their place, the citation ``8 CFR 103.7'' in paragraph
(e)(2); and
0
c. Removing the words ``Sec. 103.7(c) of 8 CFR chapter I'' and adding,
in their place, the citation ``8 CFR 103.7 and 8 CFR part 106'' in
paragraph (g).
Sec. 1245.15 [Amended]
0
22. Section 1245.15 is amended by:
0
a. Removing the words ``Sec. 103.7(b)(1) of this chapter'' and adding,
in their place, the citation ``8 CFR 103.7 and 8 CFR part 106'' in
paragraph (c)(2)(iv)(A);
0
b. Removing words ``Sec. 103.7(c) of 8 CFR chapter I'' and adding, in
their place, the citation ``8 CFR 103.7 and 8 CFR part 106'' in
paragraph (c)(2)(iv)(B); and
[[Page 82795]]
0
c. Removing the words ``Sec. 103.7(b)(1) of 8 CFR chapter I'' and
adding, in their place, the citation ``8 CFR 103.7 and 8 CFR part 106''
in paragraphs (h)(1) and (2), (n)(1), and (t)(1).
Sec. 1245.20 [Amended]
0
23. Section 1245.20 is amended by removing the words ``Sec.
103.7(b)(1) of 8 CFR chapter I'' and adding, in their place, the
citation ``8 CFR 103.7 and 8 CFR part 106'' in paragraphs (d)(1), (f),
and (g).
Sec. 1245.21 [Amended]
0
24. Section 1245.21 is amended by:
0
a. Removing the words ``Sec. 103.7(b)(1) of this chapter'' and adding,
in their place, the citation ``8 CFR 103.7 and 8 CFR part 106'' in
paragraph (b)(2); and
0
b. Removing the citation ``8 CFR 103.7(b)(1)'' and adding, in its
place, the citation ``8 CFR 103.7 and 8 CFR part 106'' in paragraphs
(h) and (i).
Dated: December 9, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-27506 Filed 12-15-20; 11:15 am]
BILLING CODE 4410-30-P