[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]


 ========================================================================
 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.
 
 ========================================================================
 

  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.

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

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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


[[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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \9\ Public Law 104-208, div. C, 110 Stat. 3009-546 (1996).
---------------------------------------------------------------------------

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
                                 -------------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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


------------------------------------------------------------------------
                                                          Total cost, by
                    Process category                          process
                                                             category
------------------------------------------------------------------------
Administrative..........................................          $12.08

[[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
                       Staff level                          staff level
------------------------------------------------------------------------
Immigration Judge.......................................         $103.61
Judicial Law Clerk......................................           41.17
Legal Assistant.........................................            7.99
                                                         ---------------
    Total...............................................          152.77
------------------------------------------------------------------------


------------------------------------------------------------------------
                                                          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
                       Staff level                          staff level
------------------------------------------------------------------------
Immigration Judge.......................................          $90.76
Judicial Law Clerk......................................           41.17
Legal Assistant.........................................            7.99
                                                         ---------------
    Total...............................................          139.92
------------------------------------------------------------------------


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