82750 Federal Register / Vol. 85, No. 244 / Friday, December 18, 2020 / Rules and Regulations 

1Following 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). 

2All 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. 

3Title 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’’). 

4Circular 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Circular No. A–25 Revised rescinded and replaced 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). 

5See Fed. Power Comm’n v. New England Power 

Co., 415 U.S. 345, 349–51 (1974). 

DEPARTMENT OF JUSTICE 

Executive Office for Immigration 

Review 

8 CFR Parts 1003, 1103, 1208, 1216, 

1240, 1244, and 1245 

[EOIR Docket No. 18–0101; A.G. Order No. 

4929–2020] 

RIN 1125–AA90 

Executive Office for Immigration 

Review; Fee Review 

AGENCY: Executive Office for 

Immigration Review, Department of 

Justice. 

ACTION: Final rule. 

SUMMARY: On February 28, 2020, the 

Department of Justice (‘‘the 

Department’’ or ‘‘DOJ’’) published a 

notice of proposed rulemaking 

(‘‘NPRM’’ or ‘‘proposed rule’’) that 

would increase the fees for those 

Executive Office for Immigration 

Review (‘‘EOIR’’) applications, appeals, 

and motions that are subject to an EOIRdetermined 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 crossreferences to DHS regulations regarding 

fees to match changes to the 

organization and structure of DHS’s 

regulations regarding fees for 

applications and make a nonsubstantive 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). 

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. 

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’’). 

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. 


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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 DHSimposed 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 crossreferences 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 crossreferences, both to a provision regarding 

requests pursuant to FOIA and to EOIR’s 

own fee-related regulations. 85 FR at 

11872. 

More specifically, the NPRM 

proposed the following changes to 

EOIR’s regulations. 

a. Part 1003—Executive Office for 

Immigration Review 

First, the NPRM proposed to amend 8 

CFR part 1003 by updating citations 

contained in this part. In accordance 

with DHS’s rulemaking, the NPRM 

proposed to change ‘‘8 CFR 103.7(a)’’ to 

‘‘§ 1103.7(b)’’ in § 1003.8(a)(4)(ii), and it 

proposed to change ‘‘8 CFR 103.7’’ to ‘‘8 

CFR 103.7 and 8 CFR part 106’’ in 

§ 1003.24(a) and (c). 

b. Part 1103—Appeals, Records, and 

Fees 

Also, in accordance with DHS’s 

rulemaking, the NPRM proposed to 

amend 8 CFR 1103.7 by changing (1) the 

citation ‘‘8 CFR 103.7(a)(1)’’ to ‘‘8 CFR 

103.7(a)’’ in paragraph (a)(3); (2) the 

citation ‘‘8 CFR 103.7(a)(2)’’ to ‘‘8 CFR 

103.7(c) and 8 CFR 106.1’’ in paragraph 

(a)(3); and (3) the citation ‘‘8 CFR 103.7’’ 

to ‘‘8 CFR 103.7 and 8 CFR part 106’’ in 

paragraph (b)(4)(ii). In addition, the 

NPRM proposed revising paragraph 

(b)(4)(ii) of § 1103.7 to clarify that 

despite DHS’s proposed assignment of a 

$50 fee for filing a Form I–589, 

Application for Asylum and for 

Withholding of Removal, such fee 

would not apply for a Form I–589 filed 

with an immigration judge ‘‘for the sole 

purpose of seeking withholding of 

removal under section 241(b)(3) of the 

Act or protection under the Convention 

Against Torture regulations.’’ 

Next, the NPRM proposed to revise 

paragraphs (b)(1), (b)(2), and (b)(4)(i) to 

reflect the updated fee amounts. 

Paragraph (b)(1) would contain updated 

fees for Forms EOIR–26, –29, and –45. 

Paragraph (b)(2) would contain updated 

fees for motions to reopen or to 

reconsider before the immigration court 

and motions to reopen or to reconsider 

before the BIA. Paragraph (b)(4)(i) 

would contain updated fees for Forms 

EOIR–40, –42A, and –42B. 

The NPRM also proposed to revise 

paragraph (d) to correct a crossreference 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. 


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6The 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. 

c. Part 1208—Procedures for Asylum 

and Withholding of Removal 

The NPRM proposed to amend 8 CFR 

1208.7 to change the citation 

‘‘§ 103.7(c)’’ to ‘‘8 CFR 106.3’’ in 

paragraph (c), in accordance with DHS’s 

proposed rule. 

d. Part 1216—Conditional Basis of 

Lawful Permanent Residence Status 

Also in accordance with DHS’s 

rulemaking, the NPRM proposed to 

amend 8 CFR part 1216. In § 1216.4, the 

NPRM proposed to change the citation 

‘‘§ 103.7(b)’’ to ‘‘§ 106.2’’ in paragraph 

(a)(1). It also proposed to change the 

citation ‘‘§ 103.7(b)’’ to ‘‘§ 106.2’’ in 

paragraph (b). In § 1216.6, the NPRM 

proposed to change the citation 

‘‘§ 103.7(b)(1)’’ to ‘‘§ 106.2’’ in paragraph 

(a)(1). 

e. Part 1235—Inspection of Persons 

Applying for Admission 

Also in accordance with DHS’s 

rulemaking, the NPRM proposed to 

amend 8 CFR 1235.1 to change the 

citation ‘‘§ 103.7(b)(1)’’ to ‘‘§ 103.7(d)’’ 

in paragraphs (e)(1)(iii), (e)(2), and (f)(1). 

This final rule, however, does not adopt 

that change because an intervening 

rulemaking, Procedures for Asylum and 

Withholding of Removal; Credible Fear 

and Reasonable Fear Review, signed by 

the Attorney General and the Acting 

Secretary of Homeland Security on 

December 2, 2020, removed and 

reserved 8 CFR 1235.1 altogether. 

f. Part 1240—Proceedings to Determine 

Removability of Aliens in the United 

States 

The NPRM proposed to amend 8 CFR 

part 1240 to correct cross-references to 

EOIR’s own regulations. In § 1240.11, 

the NPRM proposed to change the 

citation ‘‘§ 103.7(b)(1) of 8 CFR chapter 

I’’ to ‘‘§ 1103.7(b)(1) of this chapter’’ in 

paragraph (f). In § 1240.20, the NPRM 

proposed to change the citation 

‘‘§ 103.7(b) of 8 CFR chapter I’’ to 

‘‘§ 1103.7(b) of this chapter’’ in 

paragraph (a). 

g. Part 1244—Temporary Protected 

Status for Nationals of Designated States 

The NPRM proposed to amend 8 CFR 

part 1244 in accordance with DHS’s 

proposed rulemaking. In § 1244.6, the 

NPRM proposed to change the citation 

‘‘§ 103.7 of this chapter’’ to ‘‘8 CFR 

106.2’’. Further, in § 1244.20, the NPRM 

proposed to change the citation ‘‘8 CFR 

103.7(b)’’ to ‘‘8 CFR 106.2’’ in paragraph 

(a). 

h. Part 1245—Adjustment of Status to 

that of Person Admitted for Permanent 

Residence 

The NPRM proposed to amend 8 CFR 

part 1245 in accordance with DHS’s 

proposed rule. 

In § 1245.7, the NPRM proposed to 

change the citation ‘‘§ 103.7 of this 

chapter’’ to ‘‘8 CFR 103.7 and 8 CFR 

103.17’’ in paragraph (a). 

In § 1245.10, the NPRM proposed to 

change the citation ‘‘§ 103.7(b)(1) of this 

chapter’’ to ‘‘8 CFR 106.2’’ in paragraph 

(c). 

In § 1245.13, the NPRM proposed to 

change the citation ‘‘§ 103.7(b)(1)’’ to 

‘‘§ 106.2’’ in paragraphs (e)(1), (g), (j)(1), 

and (k)(1), and it proposed to change the 

citation ‘‘§ 103.7(b)(1)’’ to 

‘‘§ 103.7(a)(2)’’ in paragraph (e)(2). 

In § 1245.15, the NPRM proposed to 

change the citation ‘‘§ 103.7(b)(1) of this 

chapter’’ to ‘‘8 CFR 106.2’’ in paragraph 

(c)(2)(iv)(A), and it proposed to change 

the citation ‘‘§ 103.7(c)’’ to ‘‘§ 106.3’’ in 

paragraph (c)(2)(iv)(B). Further, in 

1245.15, the NPRM proposed to change 

the citation ‘‘§ 103.7(b)(1)’’ to ‘‘§ 106.2’’ 

in paragraph (h)(1), (n)(1), and (t)(1), 

and it proposed to change the citation 

‘‘§ 103.7(b)(1)’’ to ‘‘§ 103.2(a)(2)’’ in 

paragraph (h)(2). 

In § 1245.20, the NPRM proposed to 

change the citation ‘‘§ 103.7(b)(1)’’ to 

‘‘§ 106.2’’ in paragraphs (d)(1), (f), and 

(g). 

In § 1245.21, the NPRM proposed to 

change the citation ‘‘§ 103.7(b)(1) of this 

chapter’’ to ‘‘8 CFR 106.2’’ in paragraph 

(b)(2), and it proposed to change the 

citation ‘‘8 CFR 103.7(b)(1)’’ to ‘‘8 CFR 

106.2’’ in paragraphs (h) and (i). 

II. Public Comments on the Proposed 

Rule 

A. Summary of Public Comments 

The comment period for the NPRM 

closed on March 30, 2020, with 601 

comments received.6 Organizations 

(including non-governmental 

organizations, legal advocacy groups, 

non-profit organizations, and religious 

organizations), congressional 

committees, and groups of members of 

Congress submitted 157 comments, and 

individual commenters submitted the 

rest. Most individual comments 

opposed the NPRM. All organizations 

but one opposed the NPRM. 

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 immigrationrelated 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 immigrationrelated 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 


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7Several comments expressed various USCISrelated concerns, such as opposition to USCISimposed 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. 

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. 

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 immigrationrelated 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 crossreferences 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.’’ 


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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 selfsustaining 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 selfsufficiency, 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 


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8Further, the CAGR calculations have been 

updated below in section IV.D. 

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. 

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 datadriven 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 


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9The 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. 

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 nonprecedential; 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 activitybased 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


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10These numbers include both motions to reopen 

and motions to reconsider filed at the immigration 

court level. 

11These numbers include both motions to reopen 

and motions to reconsider filed at the BIA level. 

12Commenters 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. 

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.’’). 

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. 

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 


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13The 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. 

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

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 


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14Home 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. 

15The 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. 

16The 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. 

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. 

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-supportcomponents (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

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

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 


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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. 

18USCIS 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. 

19To 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. 

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). 

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). 

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 


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20For further discussion of the availability of fee 

waivers, see section II.C.4. 

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

As explained in the NPRM, the 

proposed fee for an appeal was 

determined following a comprehensive 


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21The 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. 

22To 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: 

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. 

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 alieninitiated 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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Circuit Court Remands Filed, Exec. Office for 

Immigration Rev., July 14, 2020, https://

www.justice.gov/eoir/page/file/1199211/download; 

Exec. Office for Immigration Rev. Adjudication 

Statistics: New Cases and Total Completions, Exec. 

Office for Immigration Rev., Jan. 23, 2020, https:// 

www.justice.gov/eoir/page/file/1238741/download. 

As explained above, commenters 

argued that BIA appeals have benefits 

beyond the individual direct benefits 

related to an alien’s particular personal 

interest in his or her case and that, as 

a result, the appeal fee is too high. First, 

the Department believes that the 

overarching purpose of each individual 

appeal is the individual benefit for the 

appealing party who seeks to correct an 

alleged error of law. At the same time, 

however, the Department agrees that 

administrative and appellate review 

can, at times, provide national benefits 

for immigration adjudications, such as 

providing clarity on complex topics that 

in turn creates efficiencies for 

immigration judges. See, e.g., Amicus 

Invitation No. 20–24–02, Board of 

Immigration Appeals, Feb. 24, 2020, 

available at https://www.justice.gov/ 

eoir/page/file/1251526/download 

(welcoming amicus curiae briefs 

regarding selected issues involving 

Notices to Appear). The Department 

believes that this public interest is 

balanced against the need to recover 

EOIR’s costs for providing an individual 

service and benefit for the appealing 

party by the Department’s choice not to 

set the fees at amounts that would 

account for full cost recovery by 

including (1) overhead costs, (2) cost of 

non-salary benefits, and (3) costs that 

stem from processing corresponding 

applications or documents that may be 

filed in conjunction with those items for 

which EOIR charges a fee. See 85 FR at 

11869. Had these items been included 

in the analysis, the fee required to align 

with EOIR’s processing costs would 

assumedly have been higher than $975. 

Regarding commenters’ concerns that 

the appeal fee will be difficult to raise 

in the time period allowed for filing an 

appeal with the BIA, see 8 CFR 

1003.38(b) (instructing that appeals 

must be filed with the BIA within 30 

calendar days after the immigration 

judge decision), the Department notes 

that the public will be on notice about 

the new fee amount as of this rule’s 

publication. The new fee will be stated 

in the regulations at 8 CFR 1103.7(b)(1), 

published in the instructions to the 

EOIR–26 appeal form, and published on 

the EOIR website where EOIR forms are 

made available. Moreover, immigration 

judges are required in every removal 

case to ascertain that an alien has 

received a copy of the alien’s appeal 

rights, which typically includes the 

appeal form and instructions that will 

provide information on both the fee and 

the fee waiver process. 8 CFR 

1240.10(a)(3). An alien who is 

concerned that he or she may wish to 

appeal the immigration judge’s decision 

should, accordingly, use that time 

between the initiation of the proceeding 

and the immigration judge’s issuance of 

a final decision to begin arranging funds 

for the future payment of the appeal. 

Finally, the Department disagrees 

with commenters that the Department 

should refund appeal fees when the 

alien succeeds on the merits. This 

argument misses the Department’s 

purpose to more accurately reflect the 

Department’s costs in processing and 

adjudicating the appeal. See 85 FR at 

11870. EOIR’s costs for the adjudication 

of an appeal are the same regardless of 

which party prevails on the merits, and 

the fact that the alien may ultimately 

demonstrate error by the immigration 

judge does not lessen the cost incurred 

by the BIA staff, attorneys, and Board 

members who were involved in the 

determination of the alien’s success. 

6. Concerns With Fee Increases for 

Cancellation of Removal Forms 

Comment: Commenters expressed 

concern regarding the increased fees for 

applications for cancellation of removal 

(Forms EOIR–42A and –42B). Some 

commenters noted that applicants for 

these forms of relief have remained in 

the United States for many years, 

creating ties between applicants and 

their communities. Commenters 

explained that because applicants 

would likely be unable to afford the 

NPRM’s increased fees for cancellation 

of removal, these communities would be 

negatively impacted by the severance of 

those ties. 

Specifically regarding the Form 

EOIR–42B, Application for Cancellation 

of Removal and Adjustment of Status for 

Certain Nonpermanent Residents, 

commenters noted that successful 

applicants must demonstrate 

exceptional and extremely unusual 

hardship to a qualifying relative who is 

either a United States citizen or a lawful 

permanent resident. See INA 

240A(b)(1)(D), 8 U.S.C. 1229b(b)(1)(D). 

According to commenters, this level of 

hardship often additionally results in 

economic hardship for the applicant. 

For example, commenters pointed to 

economic hardship that results from the 

applicant’s qualifying relatives suffering 

severe medical issues. 

Further, some commenters noted that 

applicants for cancellation of removal 

are unable to procure employment 

authorization until after the application 

is filed. Thus, some commenters opined 

that some applicants for cancellation of 

removal would be unable to generate the 

necessary income to pay the increased 

fees. 

As to those applicants for cancellation 

of removal under the Violence Against 

Women Act (‘‘VAWA’’), see INA 

240A(b)(2) (8 U.S.C. 1229b(b)(2)), 

commenters asserted that the increase in 

fees would run ‘‘contrary to 

congressional intent to strengthen 

protections for victims of intra-familial 

violence.’’ In support of this, some 

commenters noted that affirmative 

applications to USCIS for relief under 

VAWA have no filing fees. 

Response: Whether communities in 

the United States will suffer greater 

harm due to an increased number of 

unlawful aliens departing the country 

rather than filing applications for 

cancellation of removal is both 

speculative and beyond the scope of this 

rulemaking. To the extent that 

commenters are concerned that eligible 

aliens will not file applications for 

cancellation of removal due to the 

increased cost, the Department notes 

that both immigration judges and the 

BIA would continue to entertain 

requests from aliens for fee waivers and 

retain the discretionary authority to 

grant such waivers upon a showing that 

the alien is unable to pay. See 8 CFR 

1003.8(a)(3), 1003.24(d), 1103.7(c). 

Moreover, the Department does not 

expect that individuals who have 

resided in the United States for at least 

seven or ten years before being placed 

in immigration proceedings will 

generally be destitute, and there is no 

evidence that the filing fee will dissuade 

an alien with a valid claim—as opposed 

to one filing an application for dilatory 

purposes—from pursuing that claim. 

As to the comments regarding the 

economic hardship faced by aliens filing 

Form EOIR–42B, the Department again 

notes the availability of requests for fee 

waivers. Although some aliens may be 

unable to afford the fee for an 

application based on the timing of work 

authorization, the Department notes that 

this will vary by case, and for those 

aliens for whom it is true, the 

Department refers commenters to its 

prior discussion of fee waivers. Further, 

the Department disagrees that evidence 

an alien’s removal would cause his or 

her qualifying family member an 

exceptional and extremely unusual 

hardship is related to the alien’s 

hypothetical ability to pay the 

application fee. Instead, it misplaces the 

analysis, which focuses on the future 

harm to the family without the alien’s 

presence rather than a current 

consideration of the alien’s financial 


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24To 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. 

25To 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. 

26Further discussion of the proposed fee amounts 

in general is contained above in Section II.C.4 of 

this preamble. 

27Further discussion of fee waiver availability is 

contained above in Section II.C.5 of this preamble. 

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. 

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. 

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

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 


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28The 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. 

29Commenters 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. 

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

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 asylumapplication 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. 

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, 


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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 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. 

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 asylumseekers 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 selfsufficient.’’ 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. 


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31The 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. 

32The 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 

Continued 

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 filingdeadline 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-andsupport-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 DHSmanaged forms ‘‘reflect current practice 

and reduce that practice to regulatory 

form.’’). 

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 


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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. 

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 DOJcontrolled forms for applications for relief). 

34The 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. 

35The 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. 

36The 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. 

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. 

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. 

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

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. 

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 


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37The 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 selfexecuting’’). 

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. 

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. CardozaFonseca, 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 indepth 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). 


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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 crossreferenced 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 


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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 presentday 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 


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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 activitybased 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 INSimplemented 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. 


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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).’’). 

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). 

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

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. 

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:// 


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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-notariofraud/about_notario_fraud/ (last visited Oct. 30, 

2020). 

www.dhs.gov/operational-and-supportcomponents (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

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. 


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41See also footnote 18 supra for further 

discussion. 

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. 

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/notarionotice

national072209, 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. 


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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 DHSinitiated 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 


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42The 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. 

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 nondirect 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. 

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 


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43This 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. 

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. 

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 genderbased 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 


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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. 

46The Department reiterates that DHS has not 

assessed a $50 fee for asylum applications filed by 

a UAC in removal proceedings. 84 FR at 62319. 

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. 

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

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-bonolegal-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. 

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 caseby-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. 

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 lowincome 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-ushouseholds-in-2018-dealing-withunexpected-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 antiimmigrant motives, and the NPRM was 

not meant to discourage appeals, reduce 

immigration judge authority, or curb 

access to courts. 


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48The 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). 

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 crossreferences 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 abovecited 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 

§ 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 oneyear 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. 

Comment: One commenter 

complained about the EOIR process for 

accepting fees, which requires filers to 

pay through USCIS. The filer 


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49The 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). 

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. 

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 LopezTelles 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 


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50The 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.’’). 

51Constitutional 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. 

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

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. 

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. 


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52Approximately 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. 

53These numbers include both motions to reopen 

and motions to reconsider filed at the Board level. 

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. 

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 


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54However, 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. 55The 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. 56The 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. 

57The 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. 

activities as a separate agency from 

DHS.54

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: 

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 


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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. 

59The cost to the Government is the product of 

the projected number of filings and the cost 

calculated in the activity-based costing study. 

60FY 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. 

61Projections result in zero filings of Form EOIR– 

29. Each filing would cost the Government $704.81 

based on the activity-based costing study. 

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. 

In addition, this final rule, like the 

NPRM, includes regulatory crossreference 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 crossreference 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. 

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 wellestablished 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 


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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 foreignbased 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 activitybased 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 processmapping 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 feebased motions or forms or because they 


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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: 


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62 Data documenting the FY 2018 filings were 

obtained from the EOIR Database on July 16, 2020, 

applying a dataset from Aug. 7, 2019. 

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. 

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 

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63This 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). 64FY 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. 

65These numbers include both motions to reopen 

and motions to reconsider filed at the immigration 

court level. 

66These numbers include both motions to reopen 

and motions to reconsider filed at the BIA level. 

67As 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. 

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. 

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

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). 


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68As 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. 

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. 

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 

■ 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. 

§ 1003.8 [Amended] 

■ 2. Section 1003.8 is amended by 

removing the citation ‘‘8 CFR 103.7(a)’’ 

and adding, in its place, the citation 

‘‘§ 1103.7(b)’’ in paragraph (a)(4)(ii). 

§ 1003.24 [Amended] 

■ 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 

■ 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. 

■ 5. Section 1103.7 is amended by: 

■ 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); 

■ 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); 

■ 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 

■ d. Revising paragraphs (b)(1) and (2), 

(b)(4), and (d). 

The revisions read as follows: 

§ 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. 


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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 

■ 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. 

§ 1208.7 [Amended] 

■ 7. Section 1208.7 is amended by 

removing the words ‘‘§ 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 

■ 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. 

§ 1216.4 [Amended] 

■ 9. Section 1216.4 is amended by 

removing the words ‘‘§ 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). 

§ 1216.5 [Amended] 

■ 10. Section 1216.5 is amended by 

removing the words ‘‘§ 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). 

§ 1216.6 [Amended] 

■ 11. Section 1216.6 is amended by 

removing the words ‘‘§ 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 

■ 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). 

§ 1240.11 [Amended] 

■ 13. Section 1240.11 is amended by: 

■ a. Removing the words ‘‘§ 103.7(b)(1) 

of 8 CFR chapter I’’ and adding, in their 

place, the words ‘‘§ 1103.7(b)(1) of this 

chapter’’ in paragraph (f); and 

■ b. Removing the citation ‘‘8 CFR 

103.7(b)(1)’’ and adding, in its place, the 

words ‘‘§ 1103.7(b)(4) of this chapter’’ in 

paragraph (f). 

§ 1240.20 [Amended] 

■ 14. Section 1240.20 is amended by 

removing the words ‘‘§ 103.7(b) of 8 CFR 

chapter I’’ and adding, in their place, 

the words ‘‘§ 1103.7(b) of this chapter’’ 

in paragraph (a). 

PART 1244—TEMPORARY 

PROTECTED STATUS FOR 

NATIONALS OF DESIGNATED STATES 

■ 15. The authority for part 1244 

continues to read as follows: 

Authority: 8 U.S.C. 1103, 1254, 1254a note, 

8 CFR part 2. 

§ 1244.6 [Amended] 

■ 16. Section 1244.6 is amended by 

removing the words ‘‘§ 103.7 of this 

chapter’’ and adding, in their place, the 

citation ‘‘8 CFR 103.7 and 8 CFR part 

106’’. 

§ 1244.20 [Amended] 

■ 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 

■ 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. 

§ 1245.7 [Amended] 

■ 19. Section 1245.7 is amended by 

removing the words ‘‘§ 103.7 of this 

chapter’’ and adding, in their place, the 

words ‘‘8 CFR 103.7 and 8 CFR 103.17’’ 

in paragraph (a). 

§ 1245.10 [Amended] 

■ 20. Section 1245.10 is amended by 

removing the words ‘‘§ 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. 

§ 1245.13 [Amended] 

■ 21. Section 1245.13 is amended by: 

■ a. Removing the words ‘‘§ 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); 

■ b. Removing the words ‘‘§ 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 

■ c. Removing the words ‘‘§ 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). 

§ 1245.15 [Amended] 

■ 22. Section 1245.15 is amended by: 

■ a. Removing the words ‘‘§ 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); 

■ b. Removing words ‘‘§ 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 


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Federal Register / Vol. 85, No. 244 / Friday, December 18, 2020 / Rules and Regulations 82795 

■ c. Removing the words ‘‘§ 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). 

§ 1245.20 [Amended] 

■ 23. Section 1245.20 is amended by 

removing the words ‘‘§ 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). 

§ 1245.21 [Amended] 

■ 24. Section 1245.21 is amended by: 

■ a. Removing the words ‘‘§ 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 

■ 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 


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