[Federal Register Volume 62, Number 165 (Tuesday, August 26, 1997)]
[Rules and Regulations]
[Pages 45148-45150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22598]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3, 103, and 240

[EOIR No. 114F; A.G. Order No. 2106-97]
RIN 1125-AA15


Fees for Motions to Reopen or Reconsider

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This final 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 final 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 final rule is effective September 25, 1997.

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, Office of Examinations, 
Benefits Division, 425 I Street NW., Suite 3214, Washington, DC 20536, 
telephone (202) 307-3587.

SUPPLEMENTARY INFORMATION: On September 3, 1996, the Executive Office 
for Immigration Review (EOIR) and the Immigration and Naturalization 
Service (the Service) published an interim rule with request for 
comments in the Federal Register (61 FR 46373) amending 8 CFR parts 3, 
103, and 242. The amendments clarified 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 final 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. This 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.
    Neither the Service nor EOIR received any public comments to the 
September 3, 1996 interim rule. However, upon further review by both 
agencies, the following changes have been made to the interim rule.
    In Sec. 103.7(b)(1), language has been added to reflect two 
additional situations in which an individual filing a motion to reopen 
or reconsider need not pay the required fee for the motion. The first 
situation involves an individual who is filing a motion to reopen or 
reconsider concurrently with an initial application for relief under 
the immigration laws for which no fee is chargeable. Without this 
change, the language in the interim rule only covers a situation in 
which an individual is filing a motion to reopen or reconsider a 
decision on a previous application for relief for which no fee is 
chargeable. The second situation involves an individual who is filing a 
motion to reopen pursuant to 8 U.S.C. 1252b(c)(3)(B) as it existed 
prior to April 1, 1997, or section 240b(5)(C)(ii) of the Immigration 
and Nationality Act, as amended. These sections pertain to aliens who 
demonstrate that they did not receive notice of their immigration 
proceedings, or aliens who demonstrate that they were in Federal or 
State custody and did not appear through no fault of their own. This 
second situation is limited to motions to reopen or reconsider 
immigration proceedings over which the Immigration Court has 
jurisdiction.
    EOIR and the Service have concluded that individuals in these 
situations should not be required to pay a fee for the motion to reopen 
or reconsider. As an example in the first instance, an alien filing a 
motion to reopen to initially apply for asylum for which no fee is 
chargeable should not be in a different position than an alien who is 
filing a motion to reopen a previously adjudicated asylum application. 
As an example in the second instance, an alien should not be required 
to pay a fee to reopen a proceeding for which he or she never received 
notice.
    This rule provides a fair and equitable fee structure for motions 
to reopen or

[[Page 45149]]

reconsider 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 rule will prevent imposing undue financial 
burdens on those individuals filing such motions.
    Since the publication of this interim rule on September 3, 1996, 
new regulations implementing the recently enacted Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996 have been published (62 
FR 10312). These regulations revised and redesignated many of the 
provisions previously found at 8 CFR. Whereas the interim rule amended 
8 CFR part 242, this final rule now amends 8 CFR part 240.

Regulatory Flexibility Act

    In accordance with 5 U.S.C. 605(b), the Attorney General has 
reviewed this regulation and, by approving it, certifies that this rule 
does not have a significant economic impact on a substantial number of 
small entities because of the following factors: This rule adds two 
situations in which an individual filing a motion to reopen or 
reconsider need not pay the required fees for the motion. This rule 
will prevent imposing undue financial burdens on those individuals 
filing such motions.

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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $110 million or more; a 
major increase in costs or prices; 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.

Executive Order 12866

    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.

Executive Order 12612

    This rule has no federalism implications warranting the preparation 
of a Federalism Assessment in accordance with Executive Order No. 
12612.

Executive Order 12988

    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 240

    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, 1362; 
28 U.S.C. 509, 510, 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 240.11(f), 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, for any 
motion to reopen or reconsider made concurrently with any initial 
application for relief under the immigration laws for which no fee 
is chargeable, or for a motion to reopen a deportation or removal 
order entered in absentia if that motion is filed pursuant to 8 
U.S.C. 1252b(c)(3)(B) as it existed prior to April 1, 1997, or 
section 240b(5)(C)(ii) of the Immigration and Nationality Act, as 
amended. (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 
or for any motion to reopen or reconsider made concurrently with any 
initial application for relief under the immigration laws 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.
* * * * *

[[Page 45150]]

PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

    5. The authority citation for part 240 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
1251, 1252 note, 1252a, 1252b, 1362; 8 CFR part 2.

    6. In Sec. 240.11, paragraph (f) is amended by adding two new 
sentences after the 1st sentence, to read as follows:


Sec. 240.11  Ancillary matters, applications.

* * * * *
    (f) * * * 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 18, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-22598 Filed 8-25-97; 8:45 am]
BILLING CODE 4410-30-M