[Federal Register Volume 61, Number 171 (Tuesday, September 3, 1996)]
[Rules and Regulations]
[Pages 46373-46374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22335]



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 Rules and Regulations
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  Federal Register / Vol. 61, No. 171 / Tuesday, September 3, 1996 / 
Rules and Regulations  

[[Page 46373]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3, 103, and 242

[EOIR No. 114I; A.G. Order No. 2051-96]
RIN 1125-AA15


Fees for Motions To Reopen or Reconsider

AGENCY: Department of Justice.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This interim rule clarifies when and how fees must be paid 
when a motion to reopen or reconsider is filed concurrently with any 
application for relief under the immigration laws for which a fee is 
chargeable. This interim rule applies to motions to reopen or 
reconsider that are filed in all types of immigration proceedings, 
including those over which the Immigration and Naturalization Service 
(the ``Service'') and the Board of Immigration Appeals (the ``Board'') 
have appellate jurisdiction, respectively.

DATES: This interim rule is effective September 3, 1996. Written 
comments must be received on or before November 4, 1996.

ADDRESSES: Please submit written comments to Margaret M. Philbin, 
General Counsel, Executive Office for Immigration Review, Suite 2400, 
5107 Leesburg Pike, Falls Church, Virginia 22041, and Ernest B. Duarte, 
Branch Chief, Immigration and Naturalization Service, 425 I Street NW., 
Suite 3214, Washington, DC 20536.

FOR FURTHER INFORMATION CONTACT: Margaret M. Philbin, General Counsel, 
Executive Office for Immigration Review, Suite 2400, 5107 Leesburg 
Pike, Falls Church, Virginia 22041, telephone (703) 305-0470, or Ernest 
B. Duarte, Branch Chief, Immigration and Naturalization Service, 425 I 
Street NW., Suite 3214, Washington, DC 20536, telephone (202) 307-3587.

SUPPLEMENTARY INFORMATION: This interim rule amends 8 CFR parts 3, 103, 
and 242 by clarifying when the required fees must be paid when a motion 
to reopen or reconsider is filed concurrently with any application for 
relief under the immigration laws for which a fee is chargeable. This 
interim rule applies to motions to reopen or reconsider that are filed 
in all types of immigration proceedings, including those over which the 
Service and the Board of Immigration Appeals have appellate 
jurisdiction, respectively.
    This interim rule is necessary to eliminate questions that have 
arisen regarding the payment of fees for applications for relief that 
require their own separate fees when filed concurrently with motions to 
reopen or reconsider. For example, if an individual files a motion to 
reopen his or her deportation case in order to apply for suspension of 
deportation, is the individual required to pay only one fee for the 
motion to reopen, or one fee for the motion, and a second fee for the 
application?
    Prior to April 4, 1989, the provision at 8 CFR 103.7(b) regarding 
motions to reopen or reconsider contained a sentence that specified 
that ``[w]hen the motion to reopen or reconsider is made concurrently 
with any application under the immigration laws, the application will 
be considered an integral part of the motion and only for the fee for 
filing the motion or the fee for filing the application, whichever is 
greater, is payable.'' When this provision was amended in April 1989, 
see 54 FR 13515, this sentence was deleted without explanation. During 
the ensuing years, confusion mounted as to the meaning, if any, of this 
deletion from the regulation and its effect on the fee requirements. 
The Executive Office for Immigration Review (``EOIR'') and the Service 
are prepared to eliminate this confusion by amending the fee 
requirement for motions to reopen or reconsider as follows:
    If a motion to reopen or reconsider is filed by an individual 
concurrently with any application for relief under the immigration laws 
for which a fee is chargeable (e.g., an application for suspension of 
deportation, adjustment of status, or registry), the individual 
initially must pay only the fee required for the motion (currently, 
$110), unless a fee waiver has been granted pursuant to 8 CFR 
103.7(c)(1). If the motion to reopen or reconsider is granted, the 
individual then will have to pay the fee set forth in 8 CFR 103.7(b) 
required for the underlying application for relief in order to complete 
the application. Fee remittance for the underlying application for 
relief should be made payable to the ``Immigration and Naturalization 
Service''. Unless a fee waiver has been granted pursuant to 8 CFR 
103.7(c)(1), failure to pay the subsequent fee for the underlying 
application for relief will result in the denial of the application. If 
the motion to reopen or reconsider is denied, no further fee will be 
required because the underlying application for relief, in effect, will 
be moot. This procedure provides a fair and equitable fee structure for 
motions and their underlying applications by requiring payment of a fee 
for the underlying application only if the motion to reopen or 
reconsider is granted. This will prevent imposing undue financial 
burdens on those individuals filing such motions.
    The implementation of this rule as an interim rule, with provisions 
for post-promulgation public comment, is based upon the ``good cause'' 
exceptions found at 5 U.S.C. 553 (b)(B) and (d)(3). The reasons and the 
necessity for immediate implementation of this interim rule without 
prior notice and comment are as follows: Immediate implementation of 
this rule will ensure that fees for motions to reopen or reconsider, 
and their underlying applications for relief, are acceptable in a 
consistent manner by all immigration courts and the Board. Immediate 
implementation of this rule also will eliminate any existing confusion 
with regard to the payment of such fees at the earliest possible time, 
while still affording the agencies the opportunity to solicit and 
consider all public comments that are timely submitted. Finally, this 
interim rule provides a benefit to individuals who wish to file motions 
to reopen or reconsider. Hence, immediate implementation will make this 
benefit available without any further delay, which would be contrary to 
the public interest.
    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule affects only individuals filing

[[Page 46374]]

motions to reopen or reconsider concurrently with applications for the 
relief from deportation. Therefore, this rule does not have a 
significant economic impact on a substantial number of small entities. 
The Attorney General has determined that this rule is not a significant 
regulatory action under Executive Order No. 12866, and accordingly this 
rule has not been reviewed by the Office of Management and Budget. This 
rule has no federalism implications warranting the preparation of a 
Federalism Assessment in accordance with Executive Order No. 12612. The 
rule meets the applicable standards provided in sections 3(a) and 
3(b)(2) of Executive Order No. 12988.

List of Subjects

8 CFR Part 3

    Administrative practice and procedure, Immigration, Lawyers, 
Organizations and functions (Government agencies), Reporting and 
recordkeeping requirements.

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of Information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 242

    Administrative practice and procedure, Aliens.

    Accordingly, chapter I of Title 8 of the Code of Federal 
Regulations is amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

Subpart C--Rules of Procedure for Immigration Judge Proceedings

    1. The authority citation for part 3 continues to read as follows:

    Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b, 
1362, 1362; 28 U.S.C. 509, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 
3 CFR 1949-1953 Comp., p. 1002.

    2. In Sec. 3.31, paragraph (b) is amended by revising the first 
sentence to read as follows:


Sec. 3.31  Filing documents and applications.

* * * * *
    (b) Except as provided in 8 CFR 242.17(e), all documents or 
applications requiring the payment of a fee must be accompanied by a 
fee receipt from the Service or by an application for a waiver of fees 
pursuant to 8 CFR 3.24. * * *
* * * * *

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

    3. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252 
note, 1252b, 1304, 1356; 31 U.S.C. 9701, E.O. 12356, 47 FR 14874; 
15557; 3 CFR, 1982, Comp., p. 166; 8 CFR part 2.

    4. In Sec. 103.7, paragraph (b)(1) is amended by revising the two 
entries for ``Motion'', respectively, to read as follows:


Sec. 103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    Motion. For filing a motion to reopen or reconsider any decision 
under the immigration laws in any type of proceeding over which the 
Board of Immigration Appeals has appellate jurisdiction. No fee shall 
be charged for a motion to reopen or reconsider a decision on an 
application for relief for which no fee is chargeable. (The fee of $110 
shall be charged whenever an appeal or motion is filed by or on behalf 
of two or more aliens and all such aliens are covered by one decision. 
When a motion to reopen or reconsider is made concurrently with any 
application for relief under the immigration laws for which a fee is 
chargeable, the fee of $110 will be charged when the motion is filed 
and, if the motion is granted, the requisite fee for filing the 
application for relief will be charged and must be paid within the time 
specified in order to complete the application.)--$110.
    Motion. For filing a motion to reopen or reconsider any decision 
under the immigration laws in any type of proceeding over which the 
Board of Immigration Appeals does not have appellate jurisdiction. No 
fee shall be charged for a motion to reopen or reconsider a decision on 
an application for relief for which no fee is chargeable. (The fee of 
$110 shall be charged whenever an appeal or motion is filed by on or 
behalf of two or more aliens and all such aliens are covered by one 
decision. When a motion to reopen or reconsider is made concurrently 
with any application for relief under the immigration laws for which a 
fee is chargeable, the fee of $110 will be charged when the motion is 
filed and, if the motion is granted, the requisite fee for filing the 
application for relief will be charged and must be paid within the time 
specified in order to complete the application.)--$110.
* * * * *

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE 
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

    5. The authority citation for part 242 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note, 
1252a, 1252b, 1524, 1362; 8 CFR , part 2.

    6. In Sec. 242.17, paragraph (e) is amended by adding two new 
sentences after the 4th sentence, to read as follows:


Sec. 242.17  Ancillary matters, applications.

* * * * *
    (e) * * * When a motion to reopen or reconsider is made 
concurrently with an application for relief seeking one of the 
immigration benefits set forth in paragraphs (a) and (c) of this 
section, only the fee set forth in Sec. 103.7(b)(1) of this chapter for 
the motion must accompany the motion and application for relief. If 
such a motion is granted, the appropriate fee for the application for 
relief, if any, set forth in 8 CFR 103.7(b)(1), must be paid within the 
time specified in order to complete the application.* * *

    Dated: August 26, 1996.

Janet Reno,
Attorney General.
[FR Doc. 96-22335 Filed 8-30-96; 8:45 am]
BILLING CODE 4410-01-M