At present, fees for appellate review of decisions by Immigration Judges, as well as for motions to reopen removal orders, is set at $110. There is no fee currently to file a motion to reconsider with an immigration judge. This is a manageable fee for individuals who seek to review erroneous decisions by immigration judges. And with the Trump administration’s attacks on long-standing asylum laws and policies, this has been an important aspect of the judicial process – and access to justice, generally.
However, a draft Department of Justice regulation that has been obtained by BuzzFeed News is reporting a proposed fee of $975 to review an immigration judge’s ruling, and $895 to file a motion to reopen or reconsider. This comes only a short time after the announcement that three notoriously harsh immigration judges have been promoted to the pivotal role of Board of Immigration Appeals Members, and days after the Supreme Court terminated an injunction that prevented the government from denying asylum to those individuals who pass through third countries, and do not apply for asylum before reaching the United States, among other attacks on asylum law. Respondents can apply for fee waivers; however, a denial of a fee waiver is tantamount to rejection of an appeal – which can affect an individual’s ability to receive a decision from the appellate court. Missing a deadline is an easy way for the Board to dismiss an appeal.
More than just an increase in fees and financial burden on respondents, the proposed fee increase to nearly 9 times the current rate presents a serious problem to immigrants seeking protection. It is an attack on an individual’s right to seek judicial review, and an attack on due process in general. The Department of Justice proposal attempts to make the fees so prohibitively expensive, that the average individual – especially asylum applicants and detainees – will not be able to afford the fees, let alone afford an attorney to continue to represent them in the appellate process.