Federal Register, Volume 85 Issue 40 (Friday, February 28, 2020)

[Federal Register Volume 85, Number 40 (Friday, February 28, 2020)]
[Proposed Rules]
[Pages 11866-11876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03784]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 85 , No. 40 / Friday, February 28, 2020 /
Proposed Rules

[[Page 11866]]

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003, 1103, 1208, 1216, 1235, 1240, 1244, and 1245

[EOIR Docket No. 18-0101; A.G. Order No. 4641-2020]
RIN 1125-AA90

Executive Office for Immigration Review; Fee Review

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice's Executive Office for Immigration
Review (``EOIR'') imposes fees, also known as user charges, for the
filing of certain EOIR forms for applications for relief, appeals filed
with the Board of Immigration Appeals (``BIA''), and motions to reopen
or reconsider. When applicable, the current fee for EOIR applications
for relief is $100, and the fee for motions or appeals is $110. EOIR
last reviewed and updated these fees 33 years ago, in 1986. This
proposed rule (``proposed rule'' or ``rule'') 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. This
proposed rule would not affect the fees that have been established by
the Department of Homeland Security (``DHS'') with respect to DHS forms
for applications that are filed or submitted in EOIR proceedings. This
proposal does not affect the ability of aliens to submit fee waiver
requests, nor does it add new fees. The proposed rule also updates
cross-references to DHS regulations regarding fees and makes a
technical change regarding requests under the Freedom of Information
Act.

DATES: Written comments must be postmarked and electronic comments must
be submitted on or before March 30, 2020.

ADDRESSES: You may submit comments, identified by EOIR Docket No. 18-
0101, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments. Commenters should be
aware that the electronic Federal Docket Management System will not
accept comments after midnight Eastern Time on the last day of the
comment period.
Mail: Lauren Alder Reid, Assistant Director, Office of
Policy, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2600, Falls Church, VA 22041. To ensure proper handling, please
reference EOIR Docket No. 18-0101 on your correspondence. This mailing
address may also be used for paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Lauren Alder Reid, Assistant
Director, Office of Policy, Executive Office for Immigration Review,
5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041.

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
Office of Policy, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-
0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule. The Department of Justice (``Department'' or ``DOJ'') also
invites comments that relate to the economic, environmental, or
federalism effects that might result from this rule. Comments that will
provide the most assistance to the Department in developing these
procedures will reference a specific portion of the rule, explain the
reason for any recommended change, and include data, information, or
authority that support such recommended change.
All submissions received should include the agency name and EOIR
Docket No. 18-0101 for this rulemaking. Please note that all comments
received are considered part of the public record and made available
for public inspection at http://www.regulations.gov. Such information
includes personal identifying information (such as your name, address,
etc.) voluntarily submitted by the commenter.
If you want to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment and identify what
information you want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
http://www.regulations.gov.
Personal identifying information and confidential business
information identified as set forth above will be placed in the
agency's public docket file, but not posted online. To inspect the
agency's public docket file in person, you must make an appointment
with agency counsel. Please see the FOR FURTHER INFORMATION CONTACT
section above for agency counsel's contact information.

II. Purpose and Summary of This Proposed Rule

A. Legal Authority

In 1988, Congress established the Immigration Examinations Fee
Account in the Treasury of the United States. See Public Law 100-459,
sec. 209, 102 Stat. 2186 (Oct. 1, 1988) (codified as amended at 8
U.S.C. 1356(m), (n)). Section 286(m) of the Immigration and Nationality
Act (``INA''), 8 U.S.C. 1356(m), authorizes 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.'' Prior to the enactment of
section 286(m), EOIR had relied only on government-wide statutory
authority under the Independent Offices Appropriations Act of 1952
(``IOAA''), 31 U.S.C. 9701, to

[[Page 11867]]

charge fees, also referred to as user charges, to individuals who
receive special services from the agency.
EOIR's authority to charge user fees first derived from title V of
the IOAA.\1\ Under the IOAA, ``each service or thing of value provided
by an agency . . . to a person. . . is to be self-sustaining to the
extent possible.'' 31 U.S.C. 9701(a).\2\ To that end, ``[t]he head of
each agency . . . may prescribe regulations establishing the charge for
a service or thing of value provided by the agency.'' Id. at sec.
9701(b). Such fees must be ``fair'' and based on Government costs, the
value of the service or thing provided to the recipient, the public
policy or interest served, and other relevant facts. Id.
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\1\ Public Law 82-137, 65 Stat. 268, 290 (1951).
\2\ Title 31 of the U.S. Code was codified by Public Law 97-258,
96 Stat. 877 (1982). Title V of the IOAA, as amended, is codified at
31 U.S.C. 9701.
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Circular No. A-25 Revised \3\ sets Federal policy regarding user
fees assessed for Government services and for the sale or use of
Government goods or resources. Cf. Fed. Power Comm'n v. New England
Power Co., 415 U.S. 345, 349-51 (1974) (favorably citing Circular No.
A-25 as a ``proper construction'' of the IOAA). The Circular provides
guidance to executive branch agencies regarding the scope and type of
activities subject to user fees and how to set such user fees. It
applies to all Federal activities that convey special benefits to
recipients beyond those accruing to the general public. OMB instructs
agencies to ``[r]eview the user charges for agency programs
biennially.'' Circular No. A-25 Revised at sec. 8(e); see also 31
U.S.C. 902(a)(8).
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\3\ Circular No. A-25 was published in 1959. Circular No. A-25
Revised rescinded and replaced Circular No. A-25 and its
accompanying Transmittal Memoranda 1 and 2. See 58 FR 38142, 38144
(July 15, 1993).
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As noted above, the IOAA authorizes a Federal agency to charge user
fees. 31 U.S.C. 9701. Section 286 of the INA, 8 U.S.C. 1356,
contemplates the collection of certain fees and fines by the Attorney
General and the Secretary of Homeland Security.\4\ In particular,
section 286(m) contemplates that the Attorney General and the Secretary
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. All
adjudication fees that are designated in regulations are deposited in
the Immigration Examinations Fee Account (``IEFA'') in the Treasury of
the United States. Id. 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). All other
monies received in payment of fees and administrative fines and
penalties are to be deposited into the Treasury as miscellaneous
receipts, with exceptions not relevant here, such as for certain
nonimmigrant visa payments by residents of the Virgin Islands and Guam.
INA 286(c), 8 U.S.C. 1356(c). The Attorney General (and the Secretary
under the Homeland Security Act of 2002 (HSA)) have the authority to
promulgate regulations to carry out the provisions of section 286. INA
286(j), 8 U.S.C. 1356(j).
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\4\ Following the creation of DHS by the Homeland Security Act
of 2002, Public Law 107-296, 116 Stat. 2135, the 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 Homeland Security Act.
INA 103(g)(1), 8 U.S.C. 1103(g)(1). The Attorney General also
retained 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).
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B. Current Practice

EOIR currently imposes a fee for eight distinct types of filings:
Three applications for relief in proceedings before an immigration
judge (all of whom serve within the Office of the Chief Immigration
Judge (``OCIJ'')); three types of appeals to the BIA; and two motions
that may be filed in proceedings before either an immigration judge or
the BIA. 8 CFR 1103.7(b).
These filings represent important forms of relief and procedural
tools for the parties in immigration proceedings before the OCIJ and
the BIA.
Aliens use the Forms EOIR-42A and EOIR-42B to apply for
cancellation of removal, which is a statutorily provided relief from
removal if they have relatively lengthy periods of residence in the
United States, depending on the alien's status and whether the alien's
removal would cause the alien's citizen or resident family members
particularly severe hardships, in addition to other eligibility
requirements. See INA 240A, 8 U.S.C. 1229b. The Form EOIR-40 allows
eligible aliens to seek a similar form of relief under prior law.
Aliens use the Forms EOIR-26, EOIR-29, and EOIR-45 for
appeals to the BIA. Such forms, and other procedural mechanisms like
motions to reconsider,\5\ provide both aliens and the Government with a
tool to obtain appellate review and reconsideration of decisions, in
order to ensure the correctness of agency decisions in all cases. See
Ayuda, Inc. v. Attorney Gen., 848 F.2d 1297, 1301 (D.C. Cir. 1988)
(describing the public interest in the ``correctness of administrative
decisions'').
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\5\ There is no assigned form for parties who wish to file a
motion to reopen or a motion to reconsider with either an
immigration court or the BIA. The Forms EOIR-40, -42A, and -42B are
only available in immigration court, while parties may file a motion
to reopen or a motion to reconsider with either the immigration
court or the BIA.
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Finally, motions to reopen are an ``important safeguard''
used ``to ensure a proper and lawful disposition'' of immigration
proceedings. Dada v. Mukasey, 554 U.S. 1, 18 (2008).
For individuals seeking relevant relief before the immigration
courts, the fees are as follows:

------------------------------------------------------------------------
Form/motion Title Fee
------------------------------------------------------------------------
EOIR-40........................ Application for $100
Suspension of
Deportation.
EOIR-42A....................... Application for 100
Cancellation of
Removal for Certain
Permanent Residents.
EOIR-42B....................... Application for 100
Cancellation of
Removal and Adjustment
of Status for Certain
Nonpermanent Residents.
Motion to Reopen............... ....................... 110
Motion to Reconsider........... ....................... 110
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[[Page 11868]]

For individuals who wish to file an appeal or relevant motion with
the BIA, the fees are as follows:

------------------------------------------------------------------------
Form/motion Title Fee
------------------------------------------------------------------------
EOIR-26........................ Notice of Appeal from a $110
Decision of an
Immigration Judge.
EOIR-29........................ Notice of Appeal to the 110
Board of Immigration
Appeals from a
Decision of a DHS
Officer.
EOIR-45........................ Notice of Appeal from a 110
Decision of an
Adjudicating Official
in a Practitioner
Disciplinary Case.
Motion to Reopen............... ....................... 110
Motion to Reconsider........... ....................... 110
------------------------------------------------------------------------

EOIR does not require a fee in every circumstance when a party
files one of the above-listed applications for relief, appeals to the
BIA, or motions. There are certain circumstances when the normal filing
fee explicitly does not apply. See 8 CFR 1003.8(a)(2), 1003.24(b)(2).
For example, a filing party need not pay the $110 fee for a Form EOIR-
26 if the appeal is from an immigration judge's custody bond decision.
8 CFR 1003.8(a)(2)(i). An alien in proceedings before an immigration
court or the BIA may also apply for a fee waiver, and immigration
judges and the BIA have the discretionary authority to waive a fee for
an application for relief, appeal, or motion upon a showing that the
filing party is unable to pay. See 8 CFR 1003.8(a)(3), 1003.24(d),
1103.7(c).\6\
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\6\ DHS recently proposed assessing a fee for Form I-589,
Application for Asylum and for Withholding of Removal. See 84 FR
62280, 62318-20 (Nov. 14, 2019). If a filing party uses Form I-589
only for a request for withholding of removal under section
241(b)(3) of the INA or protection from removal under the
regulations implementing U.S. obligations under Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT), then no fee will be assessed.
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These EOIR fees relate back to a final rule that the former
Immigration and Naturalization Service (``INS'') and EOIR issued in
1986. 51 FR 39993 (Nov. 4, 1986) (codified at 8 CFR 103.7).\7\ INS
conducted a study in May 1984 of the ``policies and practices for user
charges,'' reviewed the costs and fees, and evaluated the principle of
user charges prescribed by Congress in 31 U.S.C. 9701 and the
implementing guidelines in OMB Circular A-25. 51 FR 2895, 2895 (Jan.
22, 1986) (proposed rule). Following those analyses, INS and EOIR
increased the fees for the applications, motions, and appeals for which
EOIR currently levies a fee (or their precursors). 51 FR at 39993-94.
EOIR and INS acted in accordance with the IOAA, 31 U.S.C. 9701, and OMB
Circular No. A-25, which the components described as ``requir[ing]
Federal agencies to establish a fee system in which a benefit or
service provided to or for any person [is] self-sustaining to the
fullest extent.'' Id. at 39993. The regulation predated the statutory
authority regarding the collection of fees in the current version of
section 286(m) of the INA.
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\7\ Following the passage of the HSA, which transferred the
functions of the INS to the newly created DHS, the Attorney General
reorganized the regulations codified in title 8 of the Code of
Federal Regulations and transferred those parts involving EOIR's
administrative review functions to a new chapter V. See 68 FR 9824
(Feb. 28, 2003). The current DHS regulation on fees remains at 8 CFR
103.7, but the relevant regulation for EOIR on fees was moved to 8
CFR 1103.7. Id. at 9833. Note that DHS has proposed adjusting and
reorganizing its regulations on fees at proposed 8 CFR 103.7 and
proposed 8 CFR part 106. See 84 FR 62280.
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In the 1986 rule, EOIR increased the fee for filing motions to
reopen and motions to reconsider from $50 to the current $110; the fee
for filing an appeal from any non-bond decision under the immigration
laws in any type of proceedings over which the BIA had appellate
jurisdiction, then a Form I-290A, from $50 to the current $110; and the
fee for an application for suspension of deportation under section 244
of the INA, then a Form I-256A, from $75 to $100. Id. EOIR and INS
explained that these fees were set in accordance with the cost of
providing each specific benefit or service at that time. Id. However,
EOIR and INS set the fees for administrative appeals processes ``at
less than full cost recovery recognizing long-standing public policy
and the interest served by these processes.'' Id.\8\
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\8\ At the time, the U.S. Court of Appeals for the D.C. Circuit
affirmed that the Attorney General had the authority under the IOAA
to impose fees for these immigration services because the fees were
imposed for a ``service or thing of value.'' Ayuda, 848 F.2d at
1299-1301. The court explained that the appeals to the BIA and
motions to reopen or reconsider were ``procedural devices that
redound to the obvious, substantial, and direct benefit of specific,
identifiable individuals, individuals who have themselves invoked
those procedures,'' id. at 1301, and cited with approval the
district court's finding that the fees imposed were reasonable, id.
at 1299 n.5; see also Ayuda, Inc. v. Attorney Gen., 661 F. Supp. 33,
35-36 (D.D.C. 1987). The district court had noted that the fees were
the product of an ``extensive agency-wide review, utilizing careful
cost accounting and full public notice and comment'' and were no
greater than the actual cost of providing services or, in the case
of appeals to the BIA and motions to reopen or reconsider BIA
decisions, were set to an amount lower than cost recovery. Ayuda,
661 F. Supp. at 36 & n.9.
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Since 1986, the former INS, and subsequently DHS, have promulgated
multiple regulatory changes related to the fees for applications that
are controlled by DHS, as currently codified in 8 CFR 103.7 and
proposed to be revised in 8 CFR 103.7 and a newly added 8 CFR part 106.
See, e.g., 81 FR 73292, 73328-31 (Oct. 24, 2016) (final rule revising
the United States Citizenship and Immigration Services (``USCIS'') fee
schedule); 84 FR 62280 (Nov. 14, 2019) (proposed rule that would revise
and reorganize regulations in 8 CFR chapter I related to fees). EOIR,
however, has rarely taken any actions related to its fees in the
intervening 33 years, even as its caseload and the costs of
adjudication have increased. After Congress passed the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,\9\ EOIR
and the former INS jointly updated the fee schedule to account for the
new Form EOIR-42, Application for Cancellation of Removal. 62 FR 10312
(Mar. 6, 1997) (interim rule). EOIR set the fee at $100, the same as
the application for suspension of deportation, which is a closely
related form of relief that cancellation of removal replaced. Id. at
10336; see also Matter of Monreal-Aguinaga, 23 I&N Dec. 56, 58 (BIA
2001) (en banc) (explaining that Congress replaced suspension of
deportation with cancellation of removal). In 2004, EOIR published a
rule reorganizing 8 CFR 1103.7 to list EOIR forms separately from DHS
forms and to otherwise make the regulation clearer for the public,
including by listing separately the $100 fee for Forms EOIR-42A and
EOIR-42B. 69 FR 44903 (July 28, 2004). The rule did not change the
required fee amounts for filing any EOIR forms, appeals, or motions.
Id. at 44904.
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\9\ Public Law 104-208, div. C, 110 Stat. 3009-546 (1996).
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C. Review of EOIR Fees

EOIR determined that it was necessary to conduct an updated
assessment of the costs for processing the forms and motions for which
EOIR sets the applicable fees. See Circular No. A-25 Revised at sec. 8
(instructing agencies to conduct biennial reviews).

[[Page 11869]]

Despite the instruction in the Chief Financial Officers Act, 31 U.S.C.
902(a)(8), for agencies' Chief Financial Officers to review user fees
biennially, it has been 35 years since EOIR last conducted a thorough
review of the costs and appropriateness of the fees for the
applications, appeals, and motions for which EOIR levies a fee. The
fees have remained static, not accounting for inflation or any other
intervening changes in EOIR's processing costs. EOIR is now proposing
this rule to remedy the failure to update the fees in past years. The
mismatch between fees and the underlying costs of review has become
more of a burden on the immigration adjudication system as aliens
overall have begun filing more of these fee-based forms and motions. In
just FY 2018, the U.S. taxpayer subsidization for these filings was
$44,379,247.\10\
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\10\ This cost to taxpayers was calculated by comparing the
actual processing costs, see infra, to the current filing fees. Form
EOIR-45 is omitted from the following table because no such forms
were filed in FY 2018.
\11\ Approximately 36% 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.
\12\ These numbers include both motions to reopen and motions to
reconsider filed at the Board level.

----------------------------------------------------------------------------------------------------------------
FY 2018 U.S.
Form Receipts FY Receipts FY FY 2018 cost FY 2018 fees taxpayer
2009 2018 to agency charged \11\ subsidization
----------------------------------------------------------------------------------------------------------------
EOIR-26......................... 19,052 31,956 $31,158,697 $3,515,160 $27,643,537
EOIR-29......................... 4,314 2,075 1,462,481 228,250 1,234,231
EOIR-40......................... 206 158 48,566 15,800 32,766
EOIR-42A........................ 5,272 3,426 1,053,084 342,600 710,484
EOIR-42B........................ 16,327 30,421 10,954,602 3,042,100 7,912,502
Motion to Reconsider (OCIJ)..... 747 2,442 339,975 268,620 71,355
Motion to Reopen (OCIJ)......... 11,324 17,741 2,710,293 1,951,510 758,783
MTRs (BIA) \12\................. 10,071 7,662 6,858,409 842,820 6,015,589
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Total....................... 67,313 95,881 54,586,107 10,206,860 44,379,247
----------------------------------------------------------------------------------------------------------------

In the spring of 2018, EOIR conducted a comprehensive study using
activity-based costing to determine the cost to EOIR for each type of
application, appeal, and motion for which EOIR levies a fee under 8 CFR
1103.7(b).\13\ The study proceeded in three phases: (1) Data
collection, (2) process mapping, and (3) activity-based costing. First,
EOIR gathered survey data and consulted with staff in the OCIJ and the
BIA to determine the appropriate staff levels and time required to
process and adjudicate each application, appeal, or motion and studied
data from the Office of Personnel Management (``OPM'') and the General
Services Administration (``GSA'') to determine the average salary rates
for applicable staff levels, including both Federal employees and EOIR
contractors. Second, EOIR developed step-by-step process maps, with
assigned times and staff levels, for how each application, appeal, or
motion is processed in the OCIJ and the BIA. These estimates were
validated by staff in the OCIJ and the BIA. Finally, EOIR allocated 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.
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\13\ Activity-based costing is the Federal Accounting Standards
Advisory Board's preferred costing methodology. See Federal
Accounting Standards Advisory Board, Statement of Federal Financial
Accounting Standards 4, at 41 (July 31, 1995) (specifically noting
that activity-based costing has ``gained broad acceptance'' and
encouraging Federal agencies to study its potential for their
operations), reprinted in FASAB Handbook of Federal Accounting
Standards and Other Pronouncements, as Amended (June 30, 2017),
http://files.fasab.gov/pdffiles/2018_fasab_handbook.pdf.
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OMB Circular A-25 Revised encourages Federal agencies to recover
the full cost of providing specific services to users, as well as
associated costs. OMB Circular A-25 Revised at secs. 5-6. Full costs
include, but are not limited to, an appropriate share of the following:
Direct and indirect personnel costs, including salaries
and fringe benefits, such as medical insurance and retirement;
Physical overhead, consulting, and other indirect costs,
including material and supply costs, utilities, insurance, travel, and
rents or imputed rents on land, buildings, and equipment;
Management and supervisory costs; and
Costs of enforcement, collection, research, establishment
of standards, and regulation. Id. at sec. 6(d)(1).
Congress has provided that DOJ may set EOIR fees for providing
adjudication and naturalization services at a level that will ensure
recovery of the full costs of providing all such services. See INA
286(m), 8 U.S.C. 1356(m).
In this fee study, however, for a variety of reasons, EOIR included
only direct salary costs and did not include the overhead costs, cost
of non-salary benefits, or costs that stem from processing
corresponding applications or documents that may be filed in
conjunction with those items for which EOIR charges a fee. With regard
to overhead costs, many of these costs occur without respect to the
number of applications, appeals, or motions (for which EOIR levies a
fee) processed by the agency and are therefore very difficult to
quantify in a calculation of cost for individual filings. With respect
to non-salary benefits, EOIR excluded such benefits because not every
employee is eligible for, or takes advantage of, these benefits; the
non-salary costs to the Government and to the employee also vary
drastically depending on which combination of benefits an employee
selects. As such, to avoid potential inaccuracies in the calculation of
overhead and non-salary benefits, EOIR has decided to include only the
currently known, quantified costs in determining what is a sufficient
fee level under section 286(m) of the INA. 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. Further, EOIR did not include in
the cost evaluation the many applications and associated documents
commonly appended to, or associated with, the forms (e.g., asylum
applications requiring processing and adjudication following the
processing and granting of a motion to reopen).

[[Page 11870]]

The study demonstrated that the applications, appeals, and motions
under 8 CFR 1103.7(b) currently have the following processing costs for
EOIR:
1. OCIJ Applications and Motions

----------------------------------------------------------------------------------------------------------------
Average Current fee
processing percentage of
Form Current fee cost (to processing
nearest $) cost
----------------------------------------------------------------------------------------------------------------
EOIR-40......................................................... $100 $307 33
EOIR-42A........................................................ 100 307 33
EOIR-42B........................................................ 100 360 28
Motion to Reopen................................................ 110 153 72
Motion to Reconsider............................................ 110 140 79
----------------------------------------------------------------------------------------------------------------

2. BIA Appeals and Motions

----------------------------------------------------------------------------------------------------------------
Average Current fee
processing percentage of
Form Current fee cost (to processing
nearest $) cost
----------------------------------------------------------------------------------------------------------------
EOIR-26......................................................... $110 $975 11
EOIR-29......................................................... 110 705 16
EOIR-45......................................................... 110 677 16
Motion to Reopen................................................ 110 895 12
Motion to Reconsider............................................ 110 895 12
----------------------------------------------------------------------------------------------------------------

III. Provisions of the Proposed Rule

The activity-based cost analysis demonstrates that EOIR's
processing costs consistently exceed the assessed fees for these EOIR
applications for relief, appeals, and motions. Although EOIR is an
appropriated agency, EOIR has determined that it is necessary to update
the fees charged for these EOIR forms and motions to more accurately
reflect the costs for EOIR's adjudications of these matters. At the
same time, however, EOIR recognizes 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. See Ayuda, 848 F.2d at 1301. 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. Given that EOIR's cost assessment did not include overhead
costs or costs of non-salary benefits (e.g., insurance), recovery of
the processing costs reported herein is appropriate to serve the
objectives of the IOAA and the public interest. The proposed fees would
help the Government recoup some of its costs when possible and would
also protect the public policy interests involved.\14\ EOIR's
calculation of fees accordingly factors 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.\15\
Consistent with past practice of this and other agencies,\16\ EOIR has
rounded the proposed fees to the nearest five-dollar increment for all
but the motions to reopen and reconsider before the immigration courts.
For those two motion types, the fee is a rounded average of actual
costs, as the actual costs of $153 and $140 were close enough to
provide one standard fee to prevent rejection of filings due to
confusion over the differing amounts. This is especially important
because the fee amounts for these motions before the BIA are exactly
the same based on actual costs.
---------------------------------------------------------------------------

\14\ While ability to pay is considered in justifying taxes, it
is generally of ``very limited value when assessing a fee which is
supposedly related as closely as reasonably possible to the cost of
servicing each individual recipient.'' Nat'l Cable Television Ass'n
v. FCC, 554 F.2d 1094, 1109 (D.C. Cir. 1976). An agency may,
however, take such into consideration if it is in the public
interest.
\15\ In making that calculation, EOIR determined that fees that
DHS has proposed for Form I-589, Application for Asylum and for
Withholding of Removal, will not be assessed if only withholding of
removal or relief under CAT are requested, without a request for
asylum relief.
\16\ EOIR's and USCIS's current fees are all multiples of 5. See
8 CFR 103.7, 1103.7. DHS has proposed a rule on fees that would
likewise set fees in multiples of 5. See 84 FR 62280.
---------------------------------------------------------------------------

Accordingly, EOIR proposes the following fee changes:
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 OCIJ and the BIA to 145 if either motion is
filed before the OCIJ, and 895 if either motion is filed before the
BIA.
The table below includes, for each form, the current fee, the
proposed fee, and the fee collection difference between the current and
proposed fees based on FY 2018 form receipts. We also include a column
that notes what today's fee is in 1986 dollars. It is more meaningful
to compare inflation-adjusted figures because the fees have not been
adjusted for inflation since they were initially set in 1986.

--------------------------------------------------------------------------------------------------------------------------------------------------------
Current fee Fee
Form/motion Current fee (in 1986 Proposed fee FY 2018 Current fee Proposed fee assessment
dollars) receipts assessments assessments difference
--------------------------------------------------------------------------------------------------------------------------------------------------------
EOIR-26................................. $110 $252.63 $975 $31,956 $3,515,160 $31,157,100 $27,641,940

[[Page 11871]]

EOIR-29................................. 110 252.63 705 2,075 228,250 1,462,875 1,234,625
EOIR-40................................. 100 229.66 305 158 15,800 48,190 32,390
EOIR-42A................................ 100 229.66 305 3,426 342,600 1,044,930 702,330
EOIR-42B................................ 100 229.66 360 30,421 3,042,100 10,951,560 7,909,460
MTR OCIJ \17\........................... 110 252.63 145 20,183 2,220,130 2,926,535 706,405
MTR BIA \18\............................ 110 252.63 895 7,662 842,820 6,857,490 6,014,670
EOIR-45................................. 110 252.63 675 0 0 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------

These proposed fee changes are reflected in the following charts:
1. OCIJ Proposed Fees

----------------------------------------------------------------------------------------------------------------
Form/motion Title Fee (current) Fee (proposed)
----------------------------------------------------------------------------------------------------------------
EOIR-40.................................... Application for Suspension of $100 $305
Deportation.
EOIR-42A................................... Application for Cancellation of 100 305
Removal for Certain Permanent
Residents.
EOIR-42B................................... Application for Cancellation of 100 360
Removal and Adjustment of Status
for Certain Nonpermanent Residents.
Motion to Reopen........................... ................................... 110 145
Motion to Reconsider....................... ................................... 110 145
----------------------------------------------------------------------------------------------------------------

2. BIA Proposed Fees

----------------------------------------------------------------------------------------------------------------
Form/motion Title Fee (current) Fee (proposed)
----------------------------------------------------------------------------------------------------------------
EOIR-26.................................... Notice of Appeal from a Decision of $110 $975
an Immigration Judge.
EOIR-29.................................... Notice of Appeal to the Board of 110 705
Immigration Appeals from a
Decision of a DHS Officer.
EOIR-45.................................... Notice of Appeal from a Decision of 110 675
an Adjudicating Official in a
Practitioner Disciplinary Case.
Motion to Reopen........................... ................................... 110 895
Motion to Reconsider....................... ................................... 110 895
----------------------------------------------------------------------------------------------------------------

These proposed changes would assign a different fee for a motion to
reopen or a motion to reconsider that is filed with the immigration
court in the OCIJ than for a motion to reopen or a motion to reconsider
that is filed with the BIA. Due to differences in the processing steps
for these motions between the OCIJ and the BIA, and different staff
costs across the components, these fee differences more accurately
reflect the substantially higher processing costs of a motion to reopen
or a motion to reconsider before the BIA while not assigning an unduly
high fee as a matter of public policy on parties who wish to file a
motion to reopen or a motion to reconsider with the immigration courts.
---------------------------------------------------------------------------

\17\ These numbers include both motions to reopen and motions to
reconsider filed at the immigration court level.
\18\ These numbers include both motions to reopen and motions to
reconsider filed at the Board level.
---------------------------------------------------------------------------

Consistent with current practice, the OCIJ and the BIA would
continue to entertain requests for fee waivers and have the
discretionary authority to waive a fee for an application or motion
upon a showing that the filing party is unable to pay. See 8 CFR
1003.8(a)(3), 1003.24(d), 1103.7(c).
The proposed rule also proposes technical edits. First, it proposes
updates to EOIR's cross-references throughout 8 CFR chapter V to
conform with DHS's proposed revisions to 8 CFR 103.7 and proposed
addition of 8 CFR part 106, both regarding fees. See 84 FR 62280. DOJ
uses forms for applications published by DHS in immigration
proceedings, and per DOJ regulations, the fees for those forms are
governed by 8 CFR 103.7. See 8 CFR 1103.7(b)(4)(ii). DHS currently
lists fees for all of its applications in 8 CFR 103.7, including DHS
applications that EOIR may also adjudicate--e.g., Forms I-191, I-485,
Supplement A to Form I-485, I-601, I-821, and I-881. DHS is proposing
to move most of those provisions to a new 8 CFR part 106 and
specifically to a new 8 CFR 106.2. See 84 FR at 62359-63. DOJ is not
proposing any revisions to 8 CFR 1103.7(b)(4)(ii) in this rule that
would change its longstanding use of DHS forms and fees. Rather, EOIR
is proposing to revise its regulations regarding fees that currently
cross-reference 8 CFR 103.7--e.g., 8 CFR 1003.8, 1003.24, and 1103.7--
to make changes conforming to DHS's proposed rulemaking.
Second, the proposed rule provides that, although DHS is proposing
a 50 fee for asylum applications, which are submitted on DHS Form I-
589, no fee would apply where an applicant submits a Form I-589 for the
sole purpose of seeking withholding of removal under section 241(b)(3)
of the INA (8 U.S.C. 1231(b)(3)) or protection from removal under the
regulations implementing U.S. obligations under Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT)--or both--in a removal proceeding. See 84
FR at 62360-61 (proposed 8 CFR 106.2(a)(20)). The fees for applications
published by DHS and used in immigration proceedings are governed by
DHS regulations, and DOJ is not proposing any revisions to 8 CFR
1103.7(b)(4)(ii) that would change its longstanding use of DHS forms.
See 8 CFR 1103.7(b)(4)(ii); 8 CFR 103.7;

[[Page 11872]]

proposed 8 CFR 106.2. DHS does not adjudicate applications for
withholding of removal under the INA or protection under the CAT
regulations, and DHS has not proposed to charge a fee for such
applications. Rather, DHS proposed to set a fee that applies to the
extent an applicant files a Form I-589 for the purpose of seeking
asylum. See 84 FR at 62360-61 (proposed 8 CFR 106.2(a)(20)). Thus, in
proceedings before an immigration judge, a 50 fee would apply to a Form
I-589 if the applicant seeks asylum. The fee would not apply if the
applicant filed the Form I-589 for the sole purpose of applying for
withholding of removal under the INA or protection under the CAT.
Third, the proposed rule would change 8 CFR 1103.7(d) to reflect
the proper regulation regarding requests under the Freedom of
Information Act. The section, as currently drafted, incorrectly refers
to 28 CFR 16.11.
Finally, the proposed rule would make technical corrections to fee-
related citations to EOIR's own regulations.

IV. Regulatory Requirements

A. Regulatory Flexibility Act

The Department has reviewed this proposed regulation in accordance
with the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612), 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, though they may pay the fee through a
representative.

B. Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.

C. Congressional Review Act

This rule is not a major rule as defined by the Congressional
Review Act. 5 U.S.C. 804(2). This rule would not result in an annual
effect on the economy of $100 million or more; a major increase in
costs or prices for consumers, individual industries, government
agencies, or geographic regions; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

D. Executive Orders 12866, 13563, and 13771

Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of using the best
available methods to quantify costs and benefits, reducing costs,
harmonizing rules, and promoting flexibility. Executive Order 13771
directs agencies to reduce regulation and control regulatory costs and,
for all qualifying regulations, to identify at least two existing
regulations for elimination.
This rule has been drafted in accordance with the principles of
Executive Order 12866, section 1(b), and Executive Order 13563. The
Department considers the proposed 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, the proposed regulation has been
submitted to OMB for review. This proposed rule would impose transfer
payments between the public and the Government and is not expected to
impose any new cost burdens that will need to be offset under Executive
Order 13771. Thus, this proposed rule is not expected to be subject to
the requirements of Executive Order 13771.
In the spring of 2018, EOIR conducted a comprehensive study using
activity-based costing to determine the cost to EOIR for each type of
application, appeal, and motion for which EOIR levies a fee under 8 CFR
1103.7(b). EOIR's methodology for conducting this comprehensive study
was as follows:
First, in the survey-data phase, EOIR gathered survey data and
consulted with OCIJ and BIA experts to determine the appropriate staff
positions involved and the average time required to process and
adjudicate each fee-based form or motion. EOIR also researched data
from OPM and the GSA to determine the average salary rates for the
applicable staff positions, including both Federal employees and EOIR
contractors.
Second, in the process-mapping phase, EOIR developed step-by-step
process maps, with assigned times and staff positions, for each fee-
based form or motion processed in the OCIJ and the BIA. OCIJ and BIA
experts validated any assumptions made during the process-mapping
phase.
Third, in the activity-based-costing phase, EOIR allocated the
salary costs from the GSA and OPM data to each step in the process,
based on the amount of time the step takes, the average salary of the
responsible staff, and the percentage of total cases in which the step
occurs. As discussed above, EOIR did not include other costs, such as
the overhead costs for EOIR space that is used for processing
applications, fringe benefits received by EOIR staff and contractors,
interpreter costs, Federal Records Center costs, non-EOIR government
agency costs, or the costs and time to process any non-fee-based
application that is submitted in conjunction with a motion to reopen or
reconsider. See 8 CFR 1003.23(b)(3) (``Any motion to reopen for the
purpose of acting on an application for relief must be accompanied by
the appropriate application for relief and all supporting
documents.''). These costs were not included in the analysis because
they represent costs that are incurred regardless of processing fee-
based motions or forms or because they 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:
1. EOIR-40, Application for Suspension of Deportation

------------------------------------------------------------------------
Total cost, by
Staff level staff level
------------------------------------------------------------------------
Immigration Judge....................................... $277.51
Judicial Law Clerk...................................... 17.78
Legal Assistant......................................... 12.08
Interpreter............................................. 0.00
---------------
Total............................................... 307.38
------------------------------------------------------------------------

[[Page 11873]]

IJ Prep Time............................................ 77.66
In-Court Time........................................... 149.58
Written Decisions....................................... 68.06
---------------
Total............................................... 307.38
------------------------------------------------------------------------

2. EOIR-42A, Application for Cancellation of Removal for Certain
Permanent Residents

------------------------------------------------------------------------
Total cost, by
Staff level staff level
------------------------------------------------------------------------
Immigration Judge....................................... $277.51
Judicial Law Clerk...................................... 17.78
Legal Assistant......................................... 12.07
Interpreter............................................. 0.00
---------------
Total............................................... 307.38
------------------------------------------------------------------------

------------------------------------------------------------------------
Total cost, by
Process category process
category
------------------------------------------------------------------------
Administrative.......................................... $12.08
IJ Prep Time............................................ 77.66
In-Court Time........................................... 149.58
Written Decisions....................................... 68.06
---------------
Total............................................... 307.38
------------------------------------------------------------------------

3. EOIR-42B, Application for Cancellation of Removal and Adjustment of
Status for Certain Nonpermanent Residents

------------------------------------------------------------------------
Total cost, by
Staff level staff level
------------------------------------------------------------------------
Immigration Judge....................................... $315.74
Judicial Law Clerk...................................... 32.27
Legal Assistant......................................... 12.08
Interpreter............................................. 0.00
---------------
Total............................................... 360.10
------------------------------------------------------------------------

------------------------------------------------------------------------
Total cost, by
Process category process
category
------------------------------------------------------------------------
Administrative.......................................... $12.08
IJ Prep Time............................................ 74.91
In-Court Time........................................... 149.58
Written Decisions....................................... 123.52
---------------
Total............................................... 360.10
------------------------------------------------------------------------

4. Motion To Reopen (OCIJ)

------------------------------------------------------------------------
Total cost, by
Process category process
category
------------------------------------------------------------------------
Administrative.......................................... $7.99
IJ Prep Time............................................ 38.95
Written Decisions....................................... 105.83
---------------
Total............................................... 152.77
------------------------------------------------------------------------

5. Motion To Reconsider (OCIJ)

------------------------------------------------------------------------
Total cost, by
Process category process
category
------------------------------------------------------------------------
Administrative.......................................... $7.99
IJ Prep Time............................................ 38.95
In-Court Time........................................... 0.00
Written Decisions....................................... 93.97
---------------
Total............................................... 139.92
------------------------------------------------------------------------

6. EOIR-26, Notice of Appeal From a Decision of an Immigration Judge

------------------------------------------------------------------------
Total cost, by
Staff level staff level
------------------------------------------------------------------------
Legal Assistant (GS-05/06/07)........................... $5.42
Legal Assistant (GS-08/09).............................. 66.64
Admin Staff (GS-08/09).................................. 198.23
Paralegal............................................... 83.12
Attorney................................................ 537.52
Board Member............................................ 76.38
Digital Image Processor................................. 7.75
---------------
Total............................................... 975.05
------------------------------------------------------------------------

------------------------------------------------------------------------
Total cost, by
Process category process
category
------------------------------------------------------------------------
Initial Processing...................................... $140.68
Case Screening/Preparation.............................. 116.44
Decision and Adjudication............................... 647.22
Final Processing........................................ 70.71
---------------
Total............................................... 975.05
------------------------------------------------------------------------

7. EOIR-29, Notice of Appeal to the Board of Immigration Appeals From a
Decision of a DHS Officer

------------------------------------------------------------------------
Total cost, by
Staff level staff level
------------------------------------------------------------------------
Legal Assistant (GS-05/06/07)........................... $5.42
Legal Assistant (GS-08/09).............................. 66.64
Admin Staff (GS-08/09).................................. 121.49
Paralegal............................................... 83.12
Attorney................................................ 344.01
Board Member............................................ 76.38
Digital Image Processor................................. 7.75
---------------
Total............................................... 704.81
------------------------------------------------------------------------

------------------------------------------------------------------------
Total cost, by
Process category process
category
------------------------------------------------------------------------
Initial Processing...................................... $63.94
Case Screening/Preparation.............................. 116.44
Decision and Adjudication............................... 453.71
Final Processing........................................ 70.71
---------------
Total............................................... 704.81
------------------------------------------------------------------------

8. EOIR-45, Notice of Appeal From a Decision of an Adjudicating
Official in a Practitioner Disciplinary Case

------------------------------------------------------------------------
Total cost, by
Staff level staff level
------------------------------------------------------------------------
Legal Assistant (GS-08/09).............................. $33.32
Admin Staff (LIE, LA, or SA; GS-08/09).................. 172.65
Attorney................................................ 387.02
Board Member............................................ 76.38
Digital Image Processor................................. 7.75
---------------
Total............................................... 677.11
------------------------------------------------------------------------

------------------------------------------------------------------------
Total cost, by
Process category process
category
------------------------------------------------------------------------
Initial Processing...................................... $115.10
Decision and Adjudication............................... 496.72
Final Processing........................................ 65.30
---------------
Total............................................... 677.11
------------------------------------------------------------------------

9. Motion To Reopen/Reconsider (BIA)

------------------------------------------------------------------------
Total cost, by
Staff level staff level
------------------------------------------------------------------------
Legal Assistant (GS-05/06/07)........................... $5.42
Legal Assistant (GS-08/09).............................. 66.64
Admin Staff (LIE, LA, or SA; GS-08/09).................. 118.30
Paralegal............................................... 83.12
Attorney................................................ 537.52
Board Member............................................ 76.38
Digital Image Processor................................. 7.75
---------------
Total............................................... 895.12
------------------------------------------------------------------------

------------------------------------------------------------------------
Total cost, by
Process category process
category
------------------------------------------------------------------------
Initial Processing...................................... $60.75
Case Screening/Preparation.............................. 116.44
Decision and Adjudication............................... 647.22
Final Processing........................................ 70.71
---------------
Total............................................... 895.12
------------------------------------------------------------------------

As discussed above, these estimated costs calculated from the study

[[Page 11874]]

demonstrate that EOIR's processing costs exceed the currently assessed
fees for every fee-based form or motion processed by EOIR. Accordingly,
the proposed rule would raise fees for these filings.
To determine the economic impact of the proposed rule, EOIR then
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.\19\ In FY 2018, EOIR received more than 95,000
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 $6.7 million in revenue. If, instead, the
aforementioned FY 2018 filings had been charged the fees proposed by
this rule, fee revenue for that fiscal year would have been
approximately $53.7 million. In sum, the proposed rule would cause
applicants to pay approximately $47 million in fee revenue beyond that
which would be expected if the filing fees were not changed. Comparing
current fee collection levels with fee collections that would have been
generated by the proposed fees in inflation-adjusted dollars \20\ show
that the total revenue would have been approximately $15.7 million, or
a difference of approximately $9 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 the proposed rule would
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 proposed 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.
---------------------------------------------------------------------------

\19\ Data documenting the FY 2018 filings were obtained from the
EOIR Database (EOIRDB) on August 7, 2019.
\20\ This calculation was made by applying the consumer price
index from 1986 (109.6) to the real dollars calculation as compared
to 2019 (252.9). Bureau of Labor Statistics, Historical Consumer
Price Index for All Urban Consumers, https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-201901.pdf (last accessed August
5, 2019).
---------------------------------------------------------------------------

Though the proposed 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 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.\21\
---------------------------------------------------------------------------

\21\ Aliens can request fee waivers by filing Form EOIR-26A with
the BIA. The form requires the alien's signature and reporting of
assets and expenses, all of which the BIA will evaluate in its
discretion. If the fee waiver request does not support the waiving
of the fee, and a payment does not accompany the filing, the filing
will not be deemed properly filed. 8 CFR 1003.8(a)(3). When the case
is before the immigration court, aliens may file a fee waiver
request via motion that substantiates the filing party's inability
to pay the fee. If such motion is not granted, the filing will not
be deemed properly filed. 8 CFR 1003.24(d). While the immigration
judge has discretion as to whether to grant the motion, no such
grant will occur if the underlying application for relief is a DHS
form and DHS regulations prohibit such waiver. 8 CFR 1103.7(c).

----------------------------------------------------------------------------------------------------------------
Compound
Percent annual growth
Form/motion Current fee Proposed fee increase rate since
1986 (percent)
----------------------------------------------------------------------------------------------------------------
EOIR-40......................................... $100 $305 205 3.33
EOIR-42A........................................ 100 305 205 3.33
EOIR-42B........................................ 100 360 260 3.84
MTR OCIJ........................................ 110 145 32 0.82
EOIR-26......................................... 110 975 886 6.84
EOIR-29......................................... 110 705 641 5.79
EOIR-45......................................... 110 675 614 5.65
MTR BIA......................................... 110 895 814 6.56
----------------------------------------------------------------------------------------------------------------

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: Civil 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.

[[Page 11875]]

8 CFR Part 1235

Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.

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.

Authority and Issuance

Accordingly, for the reasons set forth in the preamble, the
Attorney General is proposing to amend title 8, chapter V of the Code
of Federal Regulations as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
1. The authority for part 1003 continues to read as follows:

Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.

Sec. 1003.8 [Amended]

0
2. Section 1003.8 is amended by removing the citation ``8 CFR
103.7(a)'' and adding, in its place, the citation ``Sec. 1103.7(b)''
in paragraph (a)(4)(ii).

Sec. 1003.24 [Amended]

0
3. Section 1003.24 is amended by removing the citation ``8 CFR 103.7''
and adding, in its place, the words ``8 CFR 103.7 and 8 CFR part 106''
in paragraphs (a) and (c).

PART 1103--APPEALS, RECORDS, AND FEES

0
4. The authority for part 1103 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 28
U.S.C. 509, 510.

0
5. Section 1103.7 is amended by:
0
a. Removing the citation ``8 CFR 103.7(a)(1)'' and adding, in its
place, the citation ``8 CFR 103.7(a)'' in paragraph (a)(3);
0
b. Removing the citation ``8 CFR 103.7(a)(2)'' and adding, in its
place, the words ``8 CFR 103.7(c) and 8 CFR 106.1'' in paragraph
(a)(3);
0
c. Removing the citation ``8 CFR 103.7'' and adding, in its place, the
words ``8 CFR 103.7 and 8 CFR part 106'' in paragraph (b)(4)(ii); and
0
d. Revising paragraphs (b)(1) and (2), (b)(4)(i), and (d) to read as
follows:

Sec. 1103.7 Fees.

* * * * *
(b) Amounts of Fees--(1) Appeals. For filing an appeal to the Board
of Immigration Appeals, when a fee is required pursuant to 8 CFR
1003.8, as follows:

Form EOIR-26. For filing an appeal from a decision of an
immigration judge--$975.
Form EOIR-29. For filing an appeal from a decision of an officer
of the Department of Homeland Security--$705.
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 106.2.
Consistent with 8 CFR 106.2, no fee shall apply to a Form I-589 filed
with an immigration judge for the sole purpose of seeking withholding
of removal under section 241(b)(3) of the Act or protection under the
Convention Against Torture regulations.
* * * * *
(d) Requests for records under the Freedom of Information Act. Fees
for production or disclosure of records under 5 U.S.C. 552 may be
waived or reduced in accordance with 28 CFR 16.10.

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
6. The authority for part 1208 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229.

Sec. 1208.7 [Amended]

0
7. Section 1208.7 is amended by removing the citation ``Sec.
103.7(c)'' and adding, in its place, the citation ``8 CFR 106.3'' in
paragraph (c).

PART 1216--CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS

0
8. The authority for part 1216 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8
CFR part 2.

Sec. 1216.4 [Amended]

0
9. Section 1216.4 is amended by removing the citation ``Sec.
103.7(b)'' and adding, in its place, the citation ``Sec. 106.2'' in
paragraph (a)(1).

Sec. 1216.5 [Amended]

0
10. Section 1216.5 is amended by removing the citation ``Sec.
103.7(b)'' and adding, in its place, the citation ``Sec. 106.2'' in
paragraph (b).

Sec. 1216.6 [Amended]

0
11. Section 1216.6 is amended by removing the citation ``Sec.
103.7(b)(1)'' and adding, in its place, the citation ``Sec. 106.2'' in
paragraph (a)(1).

PART 1235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
12. The authority for part 1235 continues to read as follows:

Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 1225,
1226, 1228, 1365a note, 1379, 1731-32; Title VII of Public Law 110-
229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458).

Sec. 1235.1 [Amended]

0
13. Section 1235.1 is amended by:
0
a. Removing the citation ``Sec. 103.7(b)(1)'' and adding, in its
place, the citation ``Sec. 103.7(d)'' in paragraphs (e)(1)(iii) and
(e)(2); and
0
b. Removing the citation ``Sec. 103.7(b)(1)'' and adding, in its
place, the citation ``Sec. 103.7(d)'' in paragraph (f)(1).

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES

0
14. The authority for part 1240 continues to read as follows:

[[Page 11876]]

Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226,
1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L.
105-277 (112 Stat. 2681).

Sec. 1240.11 [Amended]

0
15. Section 1240.11 is amended by:
0
a. Removing the words ``Sec. 103.7(b)(1) of 8 CFR chapter I'' and
adding, in their place, the words ``Sec. 1103.7(b)(1) of this
chapter'' in paragraph (f); and
0
b. Removing the citation ``8 CFR 103.7(b)(1)'' and adding, in its
place, the words ``Sec. 1103.7(b)(4) of this chapter'' in paragraph
(f).

Sec. 1240.20 [Amended]

0
16. Section 1240.20 is amended by removing the words ``Sec. 103.7(b)
of 8 CFR chapter I'' and adding, in their place, the words ``Sec.
1103.7(b) of this chapter'' in paragraph (a).

PART 1244--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED
STATES

0
17. The authority for part 1244 continues to read as follows:

Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.

Sec. 1244.6 [Amended]

0
18. Section 1244.6 is amended by removing the words ``Sec. 103.7 of
this chapter'' and adding, in their place, the citation ``8 CFR
106.2''.

Sec. 1244.20 [Amended]

0
19. Section 1244.20 is amended by removing the citation ``8 CFR
103.7(b)'' and adding, in its place, the citation ``8 CFR 106.2'' in
paragraph (a).

PART 1245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE

0
20. The authority for part 1245 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1255; section 202, Public
Law 105-100, 111 Stat. 2160, 2193; section 902, Public Law 105-277,
112 Stat. 2681; Title VII of Public Law 110-229.

Sec. 1245.7 [Amended]

0
21. Section 1245.7 is amended by removing the words ``Sec. 103.7 of
this chapter'' and adding, in their place, the words ``8 CFR 103.7 and
8 CFR 103.17'' in paragraph (a).

Sec. 1245.10 [Amended]

0
22. Section 1245.10 is amended by removing the words ``Sec.
103.7(b)(1) of this chapter'' and adding, in their place, the citation
``8 CFR 106.2'' in paragraph (c).

Sec. 1245.13 [Amended]

0
23. Section 1245.13 is amended by:
0
a. Removing the citation ``Sec. 103.7(b)(1)'' and adding, in its
place, the citation ``Sec. 106.2'' in paragraph (e)(1);
0
b. Removing the citation ``Sec. 103.7(b)(1)'' and adding, in its
place, the citation ``Sec. 103.7(a)(2)'' in paragraph (e)(2); and
0
c. Removing the citation ``Sec. 103.7(b)(1)'' and adding, in its
place, the citation ``Sec. 106.2'' in paragraphs (g), (j)(1), and
(k)(1).

Sec. 1245.15 [Amended]

0
24. Section 1245.15 is amended by:
0
a. Removing the words ``Sec. 103.7(b)(1) of this chapter'' and adding,
in their place, the citation ``8 CFR 106.2'' in paragraph
(c)(2)(iv)(A);
0
b. Removing the citation ``Sec. 103.7(c)'' and adding, in its place,
the citation ``Sec. 106.3'' in paragraph (c)(2)(iv)(B);
0
c. Removing the citation ``Sec. 103.7(b)(1)'' and adding, in its
place, the citation ``Sec. 106.2'' in paragraph (h)(1);
0
d. Removing the citation ``Sec. 103.7(b)(1)'' and adding, in its
place, the citation ``Sec. 103.2(a)(2)'' in paragraph (h)(2); and
0
e. Removing the citation ``Sec. 103.7(b)(1)'' and adding, in its
place, the citation ``Sec. 106.2'' in paragraphs (n)(1), and (t)(1).

Sec. 1245.20 [Amended]

0
25. Section 1245.20 is amended by removing the citation ``Sec.
103.7(b)(1)'' and adding, in its place, the citation ``Sec. 106.2'' in
paragraphs (d)(1), (f), and (g).

Sec. 1245.21 [Amended]

0
26. Section 1245.21 is amended by:
0
a. Removing the words ``Sec. 103.7(b)(1) of this chapter'' and adding,
in their place, the citation ``8 CFR 106.2'' in paragraph (b)(2); and
0
b. Removing the citation ``8 CFR 103.7(b)(1)'' and adding, in its
place, the citation ``8 CFR 106.2'' in paragraphs (h) and (i).

Dated: February 19, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-03784 Filed 2-27-20; 8:45 am]
BILLING CODE 4410-30-P