Fees for Motions To Reopen or Reconsider [61 FR 46373] [FR 23-96]

DOCUMENT NUMBER: FR 23-96

FEDERAL REGISTER CITE: 61 FR 46373

DATE PUBLISHED: September 3, 1996

BILLING CODE 4410-01-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3, 103, and 242

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

RIN 1125-AA15

Fees for Motions To Reopen or Reconsider

AGENCY: Department of Justice.

ACTION: Interim rule with request for comments.

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

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

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

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

SUPPLEMENTARY INFORMATION: This interim rule amends 8 CFR parts 3, 103, and 242 by clarifying when the required fees must be paid when a motion to reopen or reconsider is filed concurrently with any application for relief under the immigration laws for which a fee is chargeable. This interim rule applies to motions to reopen or reconsider that are filed in all types of immigration proceedings, including those over which the Service and the Board of Immigration Appeals have appellate jurisdiction, respectively.

This interim rule is necessary to eliminate questions that have arisen regarding the payment of fees for applications for relief that require their own separate fees when filed concurrently with motions to reopen or reconsider. For example, if an individual files a motion to reopen his or her deportation case in order to apply for suspension of deportation, is the individual required to pay only one fee for the motion to reopen, or one fee for the motion, and a second fee for the application?

Prior to April 4, 1989, the provision at 8 CFR 103.7(b) regarding motions to reopen or reconsider contained a sentence that specified that "[w]hen the motion to reopen or reconsider is made concurrently with any application under the immigration laws, the application will be considered an integral part of the motion and only for the fee for filing the motion or the fee for filing the application, whichever is greater, is payable." When this provision was amended in April 1989, see 54 FR 13515, this sentenc e was deleted without explanation. During the ensuing years, confusion mounted as to the meaning, if any, of this deletion from the regulation and its effect on the fee requirements. The Executive Office for Immigration Review ("EOIR") and the Service are prepared to eliminate this confusion by amending the fee requirement for motions to reopen or reconsider as follows:

If a motion to reopen or reconsider is filed by an individual concurrently with any application for relief under the immigration laws for which a fee is chargeable (e.g., an application for suspension of deportation, adjustment of status, or registry), the individual initially must pay only the fee required for the motion (currently, $110), unless a fee waiver has been granted pursuant to 8 CFR 103.7(c)(1). If the motion to reopen or reconsider is granted, the individual then will have to pay the fee set f orth in 8 CFR 103.7(b) required for the underlying application for relief in order to complete the application. Fee remittance for the underlying application for relief should be made payable to the "Immigration and Naturalization Service". Unless a fee waiver has been granted pursuant to 8 CFR 103.7(c)(1), failure to pay the subsequent fee for the underlying application for relief will result in the denial of the application. If the motion to reopen or reconsider is denied, no further fee will be requir ed because the underlying application for relief, in effect, will be moot. This procedure provides a fair and equitable fee structure for motions and their underlying applications by requiring payment of a fee for the underlying application only if the motion to reopen or reconsider is granted. This will prevent imposing undue financial burdens on those individuals filing such motions.

The implementation of this rule as an interim rule, with provisions for post-promulgation public comment, is based upon the "good cause" exceptions found at 5 U.S.C. 553 (b)(B) and (d)(3). The reasons and the necessity for immediate implementation of this interim rule without prior notice and comment are as follows: Immediate implementation of this rule will ensure that fees for motions to reopen or reconsider, and their underlying applications for relief, are acceptable in a consistent manner by all immigr ation courts and the Board. Immediate implementation of this rule also will eliminate any existing confusion with regard to the payment of such fees at the earliest possible time, while still affording the agencies the opportunity to solicit and consider all public comments that are timely submitted. Finally, this interim rule provides a benefit to individuals who wish to file motions to reopen or reconsider. Hence, immediate implementation will make this benefit available without any further delay, which would be contrary to the public interest.

In accordance with 5 U.S.C. 605(b), the Attorney General certifies that this rule affects only individuals filing motions to reopen or reconsider concurrently with applications for the relief from deportation. Therefore, this rule does not have a significant economic impact on a substantial number of small entities. The Attorney General has determined that this rule is not a significant regulatory action under Executive Order No. 12866, and accordingly this rule has not been reviewed by the Office of Mana gement and Budget. This rule has no federalism implications warranting the preparation of a Federalism Assessment in accordance with Executive Order No. 12612. The rule meets the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order No. 12988.

List of Subjects

8 CFR Part 3

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

8 CFR Part 103

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

8 CFR Part 242

Administrative practice and procedure, Aliens.

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