DOCUMENT NUMBER: FR 41-97

FEDERAL REGISTER CITE: 62 FR 45148

DATE PUBLISHED: August 26, 1997

BILLING CODE 4410-30-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3, 103, and 240

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

RIN 1125-AA15

Fees for Motions to Reopen or Reconsider

AGENCY: Department of Justice.

ACTION: Final rule.

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

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

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

SUPPLEMENTARY INFORMATION: On September 3, 1996, the Executive Office for Immigration Review (EOIR) and the Immigration and Naturalization Service (the Service) published an interim rule with request for comments in the Federal Register (61 FR 46373) amending 8 CFR parts 3, 103, and 242. The amendments clarified when the required fees must be paid when a motion to reopen or reconsider is filed concurrently with any application for relief under the immigration laws for which a fee is chargeable. This final rule applies to motions to reopen or reconsider that are filed in all types of immigration proceedings, including those over which the Service and the Board of Immigration Appeals have appellate jurisdiction. This rule is necessary to el iminate questions that have arisen regarding the payment of fees for applications for relief that require their own separate fees when filed concurrently with motions to reopen or reconsider.

    Neither the Service nor EOIR received any public comments to the September 3, 1996 interim rule. However, upon further review by both agencies, the following changes have been made to the interim rule.

    In § 103.7(b)(1), language has been added to reflect two additional situations in which an individual filing a motion to reopen or reconsider need not pay the required fee for the motion. The first situation involves an individual who is filing a motion to reopen or reconsider concurrently with an initial application for relief under the immigration laws for which no fee is chargeable. Without this change, the language in the interim rule only covers a situation in which an individual is filing a motion to reopen or reconsider a decision on a previous application for relief for which no fee is chargeable. The second situation involves an individual who is filing a motion to reopen pursuant to 8 U.S.C. 1252b(c)(3)(B) as it existed prior to April 1, 1997, or section 240b(5)(C)(ii) of the Immigration and Nationality Act, as amended. These sections pertain to aliens who demonstrate that they did not receive notice of their immigration proceedings, or aliens who demonstrate that they were in Federal or State custo dy and did not appear through no fault of their own. This second situation is limited to motions to reopen or reconsider immigration proceedings over which the Immigration Court has jurisdiction.

    EOIR and the Service have concluded that individuals in these situations should not be required to pay a fee for the motion to reopen or reconsider. As an example in the first instance, an alien filing a motion to reopen to initially apply for asylum for which no fee is chargeable should not be in a different position than an alien who is filing a motion to reopen a previously adjudicated asylum application. As an example in the second instance, an alien should not be required to pay a fee to reopen a proce eding for which he or she never received notice.

    This rule provides a fair and equitable fee structure for motions to reopen or reconsider and their underlying applications by requiring payment of a fee for the underlying application only if the motion to reopen or reconsider is granted. This rule will prevent imposing undue financial burdens on those individuals filing such motions.

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