Fee Waivers for Filings in Immigration Court or Before the BIA

 

Introduction: Immigration Court/BIA Fee Waivers

Fee WaiverFees are required for filing certain forms or motions during immigration proceedings in immigration court or before the Board of Immigration Appeals (BIA). We discuss the fees and the filing process on this site [see article]. In this article, we will discuss the rules for obtaining a waiver from these fees based on the inability to pay. Please note that fee waivers for fees in immigration proceedings are distinct from fee waivers for forms that are filed with the USCIS. To learn about USCIS fee waivers, please see our full article [see article].

Fee Waivers in General

Under regulations found in 8 C.F.R. 1003.7(c), 1003.8, and 1003.24, the BIA and immigration judges have the authority to waive fees that are required under 8 C.F.R. 1003.7(b). The following are the fees that may be waived by the BIA or by an immigration judge:

  • Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge ($110.00);
  • Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a USCIS Officer ($110.00);
  • Form EOIR-45, Notice of Appeal from a Decision of an Adjudicating Official in a Practitioner Disciplinary Case ($110.00);
  • Motion to reopen or reconsider ($110.00);
  • Form EOIR-40, Application for Suspension of Deportation ($100.00);
  • Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents ($100.00); and
  • Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents ($100.00).

Furthermore, the BIA or an immigration judge may waive certain fees for forms published by the DHS that are used in immigration proceedings. However, under 8 C.F.R. 1003.7(b), the BIA or an immigration judge does not have the authority to grant a waiver for a fee for a DHS form or action that is identified as non-waivable in DHS regulations. Please see our full article to learn about USCIS fee waivers [see article].

BIA Fee Waivers

Under 8 C.F.R. 1003.8(a)(3), the BIA has the discretion to waive the fee for an appeal, motion to reconsider, or motion to reopen if the filing party establishes that he or she is unable to pay the fee. In order to request a fee waiver before the BIA, the applicant must submit a Form EOIR-26A, Fee Waiver Request [PDF version, July 2015 ed., current as of Sep. 21, 2016], along with his or her application (in lieu of the requisite fee).

The current version of the Form EOIR-26A requires the applicant for a fee waiver to list his or her assets or expenses in the appropriate fields. The information contained on the form must establish that the alien is unable to pay the requisite fee for properly filing his or her appeal or motion. If the BIA determines that the Form EOIR-26A does not establish the alien's inability to pay the fee, the appeal or motion will be deemed to have been improperly filed.

It is important to note that because the form is filed under penalty of perjury, there may be criminal consequences for providing knowingly false information. In addition to the importance of being honest and following the law, it should go without saying that the consequences of being found to not merit a fee waiver are far less adverse than the potential consequences for being found to have lied under penalty of perjury.

Section 4(c) of chapter 3 of the EOIR Benchbook [PDF version] explains that the granting of a fee waiver is not automatic. Rather, the fee waiver must be requested by the applicant. Fees will not later be reimbursed “merely because the appeal is sustained, the motion is granted, or a party withdraws from the appeal or motion.”

Immigration Court Fee Waivers

Under 8 C.F.R. 1003.24(d), the immigration judge presiding over a case has the authority to waive a fee for a motion or application for relief if the filing party establishes that he or she is unable to pay the fee. The alien must have his or her request for a fee waiver accompanied by a properly executed affidavit or unsworn declaration made under the requirements found in 28 U.S.C. 1746 substantiating his or her inability to pay the fee. If the request for a fee waiver is denied, the application or motion will not be deemed to have been properly filed.

Conclusion

In order to obtain a waiver of fees in immigration proceedings, the applicant must submit compelling evidence that he or she is unable to pay the fee. The bar may be especially high in certain cases given that all of the fees for forms published by the EOIR are $100-$110. Applicants who are in immigration detention may often have strong cases for fee waivers. In addition to the imperative of being truthful in applying for a fee waiver, it is also important to not file frivolous applications. Because an application will not be deemed to be properly filed if a fee waiver is rejected, there is no incentive to filing an application for a waiver that is unlikely to be approved. Rather, applications for fee waivers should only be made when there is a bona fide inability to pay. An experienced immigration attorney will be able to guide a client in determining whether he or she may merit a fee waiver, and assisting in properly completing an application to establish the inability to pay.

To learn more about fees for forms published by the EOIR, please see our full article [see article].