EOIR FINAL RULE DRASTICALLY INCREASING EOIR FILING FEES AND HOW THAT MAY IMPACT ASYLUM SEEKERS, UNDOCUMENTED CHILDREN AND OTHER VULNERABLE GROUPS

Written by Taher Kameli & Chathan Vemuri

On January 19, 2021, a Final Rule issued by the Executive Office for Immigration Review (EOIR) will become effective that will “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 the EOIR.”[1] These fee increases apply to Forms EOIR-26, 29, 40, 42A, 42B, 45 and motions to reopen or reconsider before the Office of the Chief Immigration Judge (OCIJ) and the Board of Immigration Appeals (BIA).[2] This Rule was first Proposed back on February 28, 2020 by the Department of Justice.[3] Since its proposal, it has raised serious concerns about the obstacles it poses to non-citizens wading their way through the appeals process of the American immigration system.[4]

Previously, the fees for the enumerated forms and motions above were either $100 or $110.[5] Under the Final Rule, the EOIR-26 Form filing fee has increased from $110 to $975; the EOIR-29 Form filing fee has increased from $110 to $705; the EOIR Form-40 filing fee hasincreased from $100 to $305; the EOIR Form-42A filing fee has increased from $100 to $305; the EOIR-42B Form filing fee has increased from $100 to $360; the Motion to Reopen or Reconsider before the OCIJ filing fee has increased from $110 to $145; the Motion to Reopen or Reconsider before the Board of Immigration Appeals filing fee has increased from $110 to $895; and the EOIR-45 Form filing fee has increased from $110 to $675.[1] Overall, these fee changes represent increases from the original fees ranging from 32% to 786%.[2]

The EOIR justifies these fee increases in part by pointing to the total costs for processing and ruling on these particular motions and applications, including costs for legal assistants, paralegals, attorneys, digital image processors, administrative staff, those involved with case screening and preparation as well as those involved with making the decision and adjudicating proceedings, among other such costs.[3] Because these costs far exceed the current fees for these application forms and motions, the EOIR expects the increased fees to balance the…