March 30, 2020

Via Federal e-Rulemaking Portal Lauren Alder Reid, Assistant Director

Office of Policy, Executive Office for Immigration Review 5107 Leesburg Pike, Suite 2616

Falls Church, VA 22041

RE: EOIR Fee Review

85 Fed. Reg. 11,866 (proposed Feb. 28, 2020)

EOIR Docket No. 18-0101, RIN 1125-AA90

EOIR-2020-0001-0001

Dear Assistant Director Alder,

Brooklyn Defender Services (“BDS”) submits these comments to the Department of Justice (“DOJ”) Notice of Proposed Rulemaking regarding “Executive Office for Immigration Review; Fee Review,” published in 84 Fed. Reg. 11,866, issued on February 28, 2020, EOIR Docket No. 18-0101, RIN 1125-AA90 (hereinafter, the “Proposed Rule”). For the reasons set forth below, BDS requests that DOJ immediately halt implementation of the Proposed Rule.

In the midst of a rapidly expanding global pandemic, BDS submits these comments to urge DOJ not to demand more money from vulnerable immigrants at a time when the government is trying to put more money into the hands of people around the country. We submit these comments to put a voice to the concerns of many advocates who may be foreclosed from submitting their own comments because of the agency’s refusal to adjourn the comment period in light of the public health disaster.

BDS is a full-service public defender organization in Brooklyn, New York that provides multi-disciplinary and client-centered criminal defense, family defense, immigration, and civil legal services, along with social work and advocacy support. BDS represents low-income people in nearly 30,000 criminal, family, civil, and immigration proceedings each year. Since 2009, BDS has counseled, advised, or represented more than 15,000 clients in immigration matters including deportation defense, affirmative applications, advisals, and immigration consequence consultations in Brooklyn’s criminal court system. About a quarter of BDS’s criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and therefore at risk of losing the opportunity to obtain lawful immigration status as a result of criminal or family defense cases. Our criminal-immigration specialists provide support and expertise on thousands of such cases. BDS’s immigration practice represents people in applications for immigration relief, including asylum, before U.S. Citizenship and Immigration Services (“USCIS”), and in removal proceedings in New York’s immigration courts and before the Board of Immigration Appeals (“BIA”). In addition, BDS is one of three New York Immigrant Family Unity Project (“NYIFUP”) providers and has represented more than 1,400 people in detained deportation proceedings since the inception of the program in 2013.

As set forth below, BDS strongly opposes the Proposed Rule. BDS, along with legal service providers across the country, represents underserved and vulnerable low-income immigrants in removal proceedings before the Executive Office of Immigration Review (“EOIR”). The Proposed Rule’s increase in fees will unduly burden immigrant communities and the legal services providers, such as BDS, who serve them. The proposed fees are excessive, and, with inadequate fee waiver processes, many immigrants may be “priced out” of asserting relief from deportation for which they are eligible, or of appealing errors the agency made in their case. However, this is not surprising: this Proposed Rule is just one of a myriad of proposed regulations and policies that this Administration has issued to curtail the ability of low-income immigrants, immigrants of color, and other vulnerable immigrants to fairly present their immigration cases and seek or maintain status in the United States.1 The United States immigration system was not built to serve only those immigrants with means, yet that is exactly what this Proposed Rule—along with the others—is meant to achieve.

1. Background

The Proposed Rule would increase the fees associated with filing certain applications of relief before immigration judges, including cancellation of removal, most appeals filed with the Board of Immigration Appeals (“BIA”), and most motions to reopen or reconsider before an immigration judge or the BIA. All except one of the proposed changes is an increase of at least 300 percent compared to the current fee. For appeals to the BIA of immigration judge decisions, the increase is approximately nine times, or 887 percent of the current fee ($110 currently to $975 as proposed). For motions to reopen before the BIA, the increase is approximately eight times the current fee, or 814 percent ($110 currently to $895 as proposed). The Proposed Rule indicates that the agency’s fees have changed little since 1986. It further states that EOIR, having conducted a comprehensive study of the actual costs of processing each of the forms, concludes that the fee increases are needed to reduce the amount to which the costs are borne by taxpayer subsidization. Under the Proposed Rule, EOIR would continue to entertain requests for fee waivers under the current processes.

2. EOIR Should Withdraw the Proposed Rule In Light of the COVID-19 Pandemic Or, Alternatively, Adjourn the Comment Period.

EOIR issued the Proposed Rule on February 28, 2020 and provided for a 30-day comment period. Given the importance of this issue and the significant detrimental impact it will have on middle- and low-income immigrants, the 30-day comment period was too short to allow organizations to fully digest the rule and meaningfully craft feedback. Thus, over 90 legal services organizations, including BDS, joined a March 5, 2020 letter filed by Catholic Legal Immigration Network, Inc. (“CLINIC”) requesting an extension of the comment period to 60-days.2 EOIR did not grant the request. On March 23, 2020—after the World Health Organization labeled COVID-19 a global pandemic— over 100 organizations joined CLINIC in requesting that EOIR freeze the instant comment deadline until the federal government had lifted the national emergency related to the COVID-19 pandemic.3 Once again, EOIR did not grant the request.

Since EOIR issued the Proposed Rule, more than 3,050 people in the United States have died from the coronavirus and over 163,000 tested positive.4 Over 30 U.S. states and 82 counties have issued stay-at-home orders, school closures, and other severe restrictions to non-essential workers.5 Some of the hardest hit states—New York, New Jersey, and California—are also those with the busiest immigration courts and most developed network of immigration legal services. Notably, approximately 50 percent of all confirmed cases and deaths in the United States have been in New York and New Jersey.6 Nor is it business as usual at EOIR: many immigration courts are closed and non-detained master calendar hearings and deadlines postponed. The country’s largest immigration court—26 Federal Plaza in New York—has been closed since March 18.7 Daily life has been disrupted, many are now unemployed, and the health and financial security of many individuals is at risk, if not already suffering. While Congress is dedicating over $2 trillion dollars in an attempt to salvage the economy, many of those who submit applications for relief to EOIR will receive no benefit from this stimulus because of their immigration status or that of their household members. Instead of being provided relief in this time of crisis, the Proposed Rule would have them pay more into the system. Against this backdrop, EOIR is not only asking legal organizations to divert resources to carefully review the Proposed Rule and provide meaningful feedback, but more cruelly, is forging ahead with its plan to significantly increase the fees for individuals in removal proceedings. Given the public health emergency, and the particularly profound financial crisis into which immigrant communities have been thrust, EOIR should withdraw the proposed rule or, alternatively, adjourn the comment period.

3. The EOIR Fees Are Excessive and Not Related to Any Legitimate Purpose

The increased fees will inhibit the ability of eligible immigrants to request relief from removal and to appeal agency errors. This is unwarranted for several reasons. First, although the Proposed Rule seeks to shift the fiscal burden from appropriations to fees, EOIR is not a fees-funded agency and any increased funding should come through the congressional appropriations process, not on the backs of immigrants. The Proposed Rule does not explain why EOIR cannot cover its operating costs through the appropriations process, or why—or indeed if—it needs the additional money it is raising through the increased fees.

Second, appeals, applications, and motions should remain accessible and affordable in order to uphold the principles of access to justice and the right to due process. EOIR asserts that it is taking into consideration the “public interest” in ensuring that the immigration courts are accessible to [immigrants] seeking relief.” 84 Fed. Reg. at 11,870. However, the increase in fees would only discourage applications for relief among immigrants in immigration proceedings, who frequently succeed in demonstrating their lawful right to be present in the United States. For example, the Proposed Rule would increase the fees to file Form EOIR 42A, Application for Cancellation of Removal for Legal Permanent Residents (“LPRs”) to $305, and Form EOIR-42B, Application for Cancellation of Removal for non-LPRs to $360. If someone is eligible for either form of cancellation of removal, they must have been in the United States for at least 10 years and, for Form 42B, also have relatives with citizenship or LPR status—thus, they have significant contacts in the United States. If individuals cannot afford the application fee, and cannot convince the same judge who will hear their removal case to grant them a fee waiver, they will be deported despite being eligible for, and often entitled to, relief. Individuals should be able to access relief from deportation that is provided for under the INA and for which they are eligible for—regardless of their income.

Third, the fee increase is excessive. For the aforementioned reasons, no fee increase is appropriate; nonetheless, in the event the fees are to increase, the proposed increases are far in excess of what can be accounted for by inflation. Thus, EOIR’s attempts to justify the fee increases by claiming that the current fee structure has been “static” for 33 years are merely pre-text. For example, the proposed increase for the EOIR-26 to $975, is more than triple what it would need to be to simply account for inflation.8 Lastly, claims of overburdened immigration courts are, in part, a function of this Administration’s own making. Dispensing with the enforcement priorities of prior administrations, ICE, under the Trump Administration, has significantly increased enforcement operations and, thus, placed many members of our community in removal proceedings needlessly.

4. The Exorbitant Increase of the Fees to Appeal Undermine Due Process and Access to Justice

The Proposed Rule increases the fee for appeals to the BIA of the decision of an immigration judge from $110 to $975.9 Notably, even when the current fee is adjusted for inflation, the proposed fee is still approximately three-and-a-half times higher by EOIR’s own calculation. Particularly given EOIR’s arbitrary fee waiver procedures, the increase would undermine basic principles of due process and access to justice recognized by the Supreme Court.

Because it is so exorbitant, the fee increase will likely result in many immigrants losing their opportunity for a meaningful hearing, a right guaranteed by due process. The Supreme Court has, for example, recognized an affirmative obligation to waive fees for indigent individuals in such diverse actions as divorce proceedings, Boddie v. Connecticut, 401 U.S. 371 (1971); parental rights termination, M.L.B. v. S.L.J., 519 U.S.102 (1996); and habeas corpus petitions, Burns v. Ohio, 360 U.S. 252 (1959).

Although the Proposed Rule retains EOIR’s existing fee waiver provisions, the agency routinely denies fee waivers inappropriately in a manner inconsistent with the due process principles articulated by the Supreme Court. For example, EOIR has rejected fee waiver requests for the appeals of several BDS clients who demonstrated indigency through public assistance receipts, including a homeless mother whose children received benefits. In other cases, EOIR has denied fee waivers because requestors have not documented income using methods the agency deems proper.

EOIR also does not adjust its 30-day window to file a notice of appeal in the case of appellants whose fee waivers are denied and who subsequently seek reconsideration or pay the fee. Thus, after a fee waiver accompanying a timely notice of appeal is denied, respondents may have their appeals dismissed as untimely even if a subsequent fee waiver request is made or fee is paid. The only option left to such appellants is to request certification, whereby EOIR can accept a technically late appeal in a wholly discretionary and unreviewable procedure. See Matter of Liadov, 23 I. & N. Dec. 990 (BIA 2006). Moreover, while such a request is pending, there is no mechanism to prevent DHS from deporting the individual.

Furthermore, with a fee increase of this magnitude, the number of fee waiver requests will almost certainly increase dramatically. EOIR, which already has a poor track record of properly evaluating fee waiver requests and a massive backlog of cases, would thus be futher burdened with adjudicating the additional requests, resulting in more erroneously denied fee waivers and appeals considered untimely out of no fault of the appealing immigrant. Moreover, EOIR’s resources would be diverted from adjudicating the merits of appeals, which are now significantly backlogged. Thus, under the Proposed Rule, far more middle-class and lower-class individuals will be denied their right to appeal.

In these ways, EOIR’s proposed exorbitant fees to appeal, coupled with its deficient fee waiver procedures, threatens the rights of immigrants to a meaningful hearing and therefore to due process under the law.

5. Applying for Asylum Should Be Free, Particularly In Removal Proceedings

EOIR looks to follow USCIS by instituting a $50 fee to file an asylum application in immigration court. If the measure were to take effect, the United States would become one of only four countries in the world to charge for asylum applications.10 The United States is obligated under domestic laws and international treaties to accept asylum seekers. The 1967 Protocol of the 1951 Convention Relating to the Status of Refugees requires the United States to accept asylum seekers who ask for protection. The proposed $50 fee puts the United States in the position of rejecting a plea for asylum, because of an inability to pay, and would effectively cause the United States to break its treaty obligations, and flouts what should be an obvious moral imperative to accept those who seek protection from persecution. Notably, the vast majority of countries who are signatories to the 1951 Convention or 1967 Protocol do not charge a fee for an asylum application.11 Further, withholding of removal and relief under the Convention Against Torture are not substitutes for asylum—they are lesser forms of relief that do not have a path to lawful permanent residence or citizenship. The United States should adhere to its international and domestic obligations and allow asylum seekers their chance to seek protection simply regardless of their financial stability. An asylum seeker should not have to choose between being deported to a country they fear persecution or death, or financial distress.

* * * *

For the reasons provided here, BDS requests that EOIR consider these recommendations and immediately halt the implementation of the Proposed Rule.

Please do not hesitate to contact us if you have questions regarding our comments.

Thank you for your attention and consideration of our concerns.

Sincerely,

/s/ Nyasa Hickey

Nyasa Hickey

Director of Immigration Initiatives

/s/ Sonia Marquez

Sonia Marquez

Civil Rights—Immigration Attorney

***

1 See generally, e.g., Public Charge Ground of Inadmissibility, 83 Fed. Reg. 51,114 (Oct. 15, 2019) (to be codified at 8 C.F.R. pts. 103, et seq.); USCIS Fee Schedule and Changes to Certain Other Immigration Benefits Requirements, 84 Fed. Reg. 62,280 (Dec. 23, 2019) (to be codified at 8 C.F.R. pts. 103, et seq.); Asylum Application, Interview, and Employment Authorization for Applicants, 84 Fed. Reg. 62,374 (proposed Nov. 14, 2019) (to be codified at 8 C.F.R. pts. 208, 274); Proclamation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, 84 Fed. Reg.53,991 (Oct. 4, 2019).

2 Letter to Assistant Director Reid and Acting Administrator Ray, EOIR, from Over 90 Organizations (Mar. 5, 2020) (on file with author).

3 Letter to Assistant Director Reid and Acting Administrator Ray, EOIR, from 100 Organizations (Mar. 23, 2020) (on file with author).

4 See Coronavirus Map: Tracking the Global Outbreak, N.Y. TIMES (last updated Mar. 30, 2020, 10:26 p.m.), https://www.nytimes.com/interactive/2020/world/coronavirus-maps.html.

5 See Which States and Cities Have Told Residents to Stay at Home, N.Y. TIMES (last updated Mar. 30, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html.

6 See id.

7 See EOIR Operation Status During Coronavirus Pandemic, EOIR, Mar. 30, 2020, https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic.

8 Adjusted for inflation over 33 years, the current $110 fee would be only $250.48 today. See, e.g., https://www.in2013dollars.com/us/inflation/1987?amount=110 (using U.S. Department of Labor inflation statistics that find that today’s prices are 127% higher than in 1987).

9 The Proposed Rule does not disturb the current practice of charging no fee to appeal an immigration judge’s denial of bond.

10 Boundless, Marriage Green Card and Citizenship Application Fees to Increase Under New Proposal, Boundless Blog, Nov. 10, 2019, https://www.boundless.com/blog/fee-hikes-citizenship-immigration- forms/.

11 See Zolan Kanno-Youngs and Miriam Jordan, New Trump Administration Proposal Would Charge Asylum Seekers an Application Fee, N.Y. TIMES, Nov. 8, 2019, https://www.nytimes.com/2019/11/08/us/politics/immigration-fees-trump.html (noting that the United States would be only the fourth country in the world to charge a fee for asylum).