EOIR--the Executive Office for Immigration Review--has proposed a fee increase for applications before the Immigration Courts and the Board of Immigration Appeals ("BIA"). The new fees purportedly reflect the cost of adjudicating the various applications that EOIR reviews, and include the following--
  • Increase the fee for Form EOIR-26 (Notice of Appeal from a Decision of an Immigration Judge) from $110 to $975.
  • Increase the fee for Form EOIR-29 (Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer) from $110 to $705.
  • Increase the fee for Form EOIR-40 (Application for Suspension of Deportation) from $100 to $305.
  • Increase the fee for Form EOIR-42A (Application for Cancellation of Removal for Certain Permanent Residents) from $100 to $305.
  • Increase the fee for Form EOIR-42B (Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents) from $100 to $360.
  • Increase the fee for filing a motion to reopen or reconsider with the immigration court from $110 to $145.
  • Increase the fee for filing a motion to reopen or reconsider with the BIA from $110 to $895,

Also, the new fees include a $50 fee for asylum cases filed with the Immigration Court (I wrote about this previously after USCIS proposed a similar fee for asylum cases filed with that agency).

As you can see, the new fees are significantly higher than the current fees. EOIR Director James McHenry justifies the fee increase as follows--
The proposed fee increases are marginal in terms of inflation-adjusted dollars and would mitigate the significant taxpayer subsidization of these forms and motions. EOIR is long past due for a review of its fee-based filings, especially as its caseload and costs have increased substantially since 1986.

As usual, Mr. McHenry's comments reflect his lack of compassion for vulnerable immigrants, not to mention his tenuous grasp of reality. A 900% fee increase for BIA appeals is certainly not "marginal," and will likely preclude many people from exercising their right to due process of law. Sadly, though, the rights of immigrants have never been a priority or a concern for Mr. McHenry, at least as far as I can tell, and so his comments are hardly surprising.

Now, to be fair, EOIR has not increased fees for 30 years, and so a review of current fees is overdue, and a reasonable fee increase could certainly be justified. Let's take, for example, the most impactful of the new fees, the fee to appeal an Immigration Court decision to the BIA. The current fee is $110. According to EOIR, had this fee been adjusted for inflation (starting in 1986), it would be $252.63 in today's dollars. So in that sense, the current fee is less than it should be (whatever that means). The new proposed fee of $975 is nearly nine times the current fee, but "only" about four times the adjusted-for-inflation fee.

Also, a fee waiver may be available for those who need it, using form EOIR-26A. This form (at least in its current iteration) is fairly simple, and seeks information about the applicant's income and expenses. It's not clear how much evidence is needed to support the contentions in the form, but given the wide latitude of adjudicators to grant or deny a fee waiver, it seems to me that the wise applicant will include significant supporting evidence (which may require a lot of work). Pursuant to the regulations, EOIR has the "discretion" to grant a fee waiver. However, the regulations also indicate that, "if the fee waiver request does not establish the inability to pay the required fee, the appeal or motion will not be deemed properly filed." Does this mean that an appeal filed along with a fee waiver will be rejected if the fee waiver is denied? Will EOIR provide some type of notice, so that applicants can raise the fee and pay for their appeal? How much time will EOIR allow to pay the fee? It's hard to be optimistic about any of this, given that the whopping new fees seem purposely designed to dissuade applicants from pursuing their rights before the Immigration Courts and the BIA.

Finally, EOIR's main justification for the new fees is that costs for the agency have increased, and raising fees will help cover EOIR's expenses and protect tax payers--to the tune of about $45 million per year. To come up with their numbers, EOIR completed a study where they looked at who adjudicates the various applications, how long it takes, and how much it costs (taking into account salaries, but not other expenses such as overhead or employee benefits). How accurate is this study? I have no idea. Different appeals, for example, require very different amounts of work. Some appeals are simple; others are complicated. But even assuming the new fees accurately reflect EOIR's expenses, I think that fee increases of this magnitude are unfair for two main reasons.

First, EOIR's justification for these fees is a con job. They talk about the expenses of immigrants, but not the contributions of immigrants to our society. The Trump Administration tried this trick at least once before, when it suppressed a study showing that refugees contribute more to our economy than they take, and instead released a distorted study, listing only the costs of helping refugees. You simply can't separate out the costs of maintaining an immigration system from the benefits we as a nation derive from that system. Yet that is what EOIR is doing here: Director McHenry decries the expenses to the system, but we learn nothing about how immigrants contribute to our economy (and the weight of the evidence indicates that immigration benefits our economy).

Second, in its mission statement, EOIR indicates that it "is committed to providing fair, expeditious, and uniform application of the nation's immigration laws in all cases." How can it fulfill this mission if the people before the Immigration Courts and the BIA cannot afford the relief to which they are entitled? To have a functioning legal system, people in our country need access to courts--civil courts, criminal courts, and immigration courts, among others. Our's is not (and should not be) a nation where you receive only the justice you can afford. Non-citizens who live in our country should not be an exception to this rule. Or, as the indefatigable Paul Wickham Schmidt writes--

Correcting errors on appeal is probably one of the most important functions the Government performs. That’s particularly true when the public segment “served” is generally limited income individuals and the getting results correct could be “life determining.”

At this stage, the new fees are proposed, but not yet in effect. The public can submit comments about the proposal, and perhaps that will cause EOIR to modify its plan. To submit comments, see page 2 of the proposed rule.

Make no mistake, these proposed fees are another attack on immigrants, justified with half truths, and implemented because immigrants are too vulnerable to fight back. All people of good conscience should continue to resist these terrible policies, which directly impact our non-citizen neighbors, but which, in the end, harm us all.

Originally posted on the Asylumist: www.Asylumist.com