On December 18, 2020, the Executive Office of Immigration Review, the Department of Justice organization responsible for immigration court administration published a new rule to increase filing fees before its agencies. The rule increased filing fees for almost all forms filed before immigration courts and the Board of Immigration Appeals. Almost immediately, advocacy groups sued the Department of Justice to stop the fee increase from going into effect. In this post, I will discuss the fee increases and the pending litigation.
Please note that a nationwide injunction is not final and may be appealed by the government. However, the nationwide injunction is in effect as of the date of writing this post.
Which Fees did the Department of Justice Increase?
As I said the Department of Justice raised the fees for almost all forms used before the Executive Office of Immigration Review agencies, including immigration courts nationwide and the Board of Immigration Appeals. The following increases were proposed under the rule:
- Fee for Form EOIR-26 increased from $110 to $975.
- Fee for Form EOIR-29 increased from $110 to $705.
- Fee for Form EOIR-40 increased from $100 to $305.
- Fee for Form EOIR-42A increased from $100 to $305.
- Fee for Form EOIR-42B increased from $100 to $360.
- Fee for Form EOIR-45 increased from $110 to $675.
- Fee for filing a motion to reopen or reconsider before the OCIJ increased from $110 to $145.
- Fee for filing a motion to reopen or reconsider before the BIA increased from $110 to $895.
Source Aila, EOIR Final Rule Increasing Fees for Filings.
Litigation Relating to EOIR Fee Increase:
The American Immigration Council, a subsidiary of the American Immigration Lawyers’ Association, the National Immigration Law Center, Catholic Charities, and Gibson, Dunn and Crutcher filed a lawsuit challenging the new rule.
The organization filed several challenges under the Administrative Procedures Act in the United States District Court for the District of Columbia.
The court granted in part and denied a part of the organizations’ motion to stay the date of the final rule. The main reasoned that the Agency did not take into account the severe consequences of the Final Rule on the Plaintiffs’ ability to provide services to their affected clients. The Court halted the implementation of the rule relating to forms EOIR-26, EOIR-29, EOIR-40, EOIR-42A and EOIR-42B, and the fee for filing a Motion to Reopen. The court kept in place the fee increases for EOIR-45 and a Motion to Reopen the Office of the Chief Immigration Judge.
The Process Leading to the Increase:
The Executive Office of Immigration Review conducted a three-phased study to implement the rules. The Office received several requests to extend the thirty days comment period because of the pandemic but did not respond. The Agency proposed the rule with an effective date of December 18, 2020, with an effective date of January 18, 2020, without announcing the results of the study.
During the comment period, the Agency received several comments relating to immigrants’ inability to pay these increased fees. The Agency defended the increased fees reasoning that American taxpayers should not bear the brunt of processing. Moreover, the Agency responded that the effects of these increases would be decreased since it is allowing for fee waivers, without promulgating clear rules for such waivers.
The Plaintiff organizations responded by highlighting the severe consequences on their operations the Final Rule would have. The organizations argued that such fee waivers will limit their ability, and the ability of small firms to serve many indigent clients. They also highlighted that most of their time filing for fee waivers, instead of helping clients in their substantive applications.
The Court’s Decision:
The Court, after ruling on jurisdiction and standing applied the four-pronged test used to rule on preliminary injunctions.
As to the likelihood of success, the Court ruled that the Plaintiffs showed a real probability of success since they cited several grounds the Agency violated the Administrative Procedures Act. Among these arguments were the Agency’s failure to determine whether the new fees were prohibitively expensive, the Agency’s failure to demonstrate the availability of fee waivers would lessen the effects of the higher fees, and the Agency’s failure to extend the comment period. The Court ruled that Plaintiffs have shown they would likely succeed on the merits of the case.
As to harm, the Court determined that the several affidavits submitted by the Plaintiffs show the real harm they would experience from the rule.
Having ruled on the first two factors, the Court moved to balance the equities and public interest in enjoining the rule. The Court ruled that since the Plaintiffs have shown the several ways they would be harmed; the balance of these equities necessitated the issuance of injunctive relief.
The Court lastly limited the scope of the injunction since the Plaintiffs did not show that they would be harmed by the increase in the fees for filing the EOIR-45, the $35 increase to file a Motion to Reopen or Reconsider before the OCIJ, and the imposition of a $50 fee to file a defensive asylum application. Accordingly, the Court issued an injunction enjoining the Agency from increasing fees, except for the three petitions mentioned above.
Lastly, the Court agreed that since the Final Rule will have nationwide implications, it should enjoin the Agency from applying the rule nationwide.
Implications of the Court’s Decision:
I wholeheartedly agree with the Court’s reasoning in issuing the injunction. During the last four years, immigration practitioners like myself, have experienced the detrimental effects of hastily promulgated rules. These rules, in my opinion, have had severe consequences on the practice of immigration law and the ability of practitioners to help clients who desperately need such help. The injunction serves the public and will have a true impact on our ability to help our clients.
During my more than 10 years of practice, I have seen the immigration law system go through many changes, none compared to the changes in the last four years. These changes were aimed to quell the system and punish desperate immigrants who have either established families in the United States or are fleeing harm in their countries. For many of these clients, the United States remains the beacon of hope it always has been. These rules diminish our standing internationally.