New BIA Filing Fee More than Reasonable



At the end of last month, the Executive Office for Immigration Review (EOIR), proposed an updated fee schedule that would require aliens subject to deportation orders to pay $1,000 to file an appeal. EOIR is the agency that oversees both the Immigration Court and the Board of Immigration appeals.) This action has provoked criticism from the open borders contingent.

According to the New York Times, the proposed fee hike is, “a nearly tenfold increase that immigration lawyers warn could make deportation appeals much more difficult to pursue.” But such assertions inevitably raise the question, why should the United States be making it easier for deported aliens to appeal their removal?

So why should American taxpayers be shouldering legal costs for foreigners who, more than likely, have no case? The short answer to that question is, they shouldn’t be.

Strangely, in an age driven by quantitative metrics, the Board of Immigration Appeals (BIA) doesn’t publish any statistics indicating how the percentage of deported aliens who ultimately choose to challenge their removal. We do know, however, that U.S. Immigration Court “completes” around 260,000 cases per year. And, according to calculations made by the Center for Immigration Studies, about 180,000 of those “completions” are deportation orders.

Research conducted by the Bureau of Justice Statistics and the National Center for State Courts indicates that roughly fifteen percent of civil trial decisions are appealed. Presuming that statistic holds true in the immigration context, approximately 27,000 deported aliens file an appeal with the BIA each year.

Those appeals, in turn, would generate just shy of $3 million in filing fees. However, the EOIR annual budget – which covers the operating costs for both the U.S. Immigration Court and the BIA – hovers around $500 million. And that means that aliens subject to deportation from the United States are defraying very little of the financial burden associated with appealing their cases.

The purpose of court filing fees is to make sure that litigants are bearing at least some of the costs connected with bringing their cases to court.  Litigants appealing decisions rendered by the federal courts currently pay a base filing fee of $505. Searches of court records, copies of documents and use of video equipment to conduct oral arguments all trigger additional fees.

But, the present BIA filing fee is a mere $110.  Unless a transcript of the original Immigration Court hearing is required, no other fees are charged. And the fees for filings before the BIA have not kept pace with the costs of processing claims.

Rather than serving as a bar to deported aliens filing appeals, the proposed BIA fee increase is a long overdue attempt to place the costs of removal where they really belong – on the foreign nationals who broke our immigration laws. It still doesn’t shift the majority of the cost for immigration appeals to deported aliens but it is a step in the right direction.

About Author

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Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats. He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.

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